LUFTHANSA TECHNIK AG v ASTRONICS ADVANCED ELECTRONIC SYSTEMS & Anor.

At the quantum stage of a split intellectual property trial, further allegations of infringement may ordinarily be raised where doing so is just and convenient. The inquiry is not confined automatically to the particular infringement instances decided at the liability trial.

That discretion may be restricted by the proper construction of an earlier order. A court order is construed objectively, by its natural and ordinary meaning, in context and in light of the issuing judge’s reasons. Where an order records that adjourned issues no longer need determination and provides no liberty to raise them on the inquiry, those issues cannot be reopened without appealing the order.

Lufthansa succeeded at a liability trial before Morgan J against Astronics Advanced Electronic Systems, Safran Seats GB Ltd and Panasonic Avionics Corporation in respect of at least one act of infringement of its European patent concerning the EmPower In-Seat Power Supply System.

Lufthansa elected an account of profits. It sought to rely at the quantum stage on additional infringement routes that had been pleaded but not determined, and on one new route. The defendants opposed this, relying particularly on Morgan J’s post-trial order, which recorded that certain issues adjourned during case management no longer needed to be determined.

The court considered whether the unresolved allegations could be raised on the account, whether the adjourned issues were barred by Morgan J’s order, and whether a new allegation relying on an adjourned issue could be introduced.

1. Unresolved allegations. The governing test was whether it was just and convenient to extend the account to additional infringement issues. The discretion was fact-sensitive.
2. It was just and convenient to permit the additional allegations which had been pleaded but left unresolved. The liability trial had been deliberately streamlined, the allegations concerned the same parties and product, none was unarguable, Lufthansa had succeeded on liability, and refusal would encourage excessive pleading and evidence at the liability stage. CPR Part 3.4(2) involved distinct strike-out considerations and did not govern the issue.
3. Adjourned issues. The court construed Morgan J’s order objectively, giving its words their natural and ordinary meaning in context and considering the reasons for making it. The principles in Pan Petroleum AJE Ltd v Yinka Folawiyo Petroleum Co Ltd & Ors, drawing on JSC BTA Bank v Ablyazov (No 10), applied. The order’s recital that the adjourned issues no longer needed determination, together with the absence of liberty to apply in relation to them, showed that they could not be raised on the account.
4. The issuing judge’s reasons were admissible and decisive in construing the order. The court declined to reconsider whether the order should have been made and exercised caution in using the parties’ submissions as an interpretative guide.
5. New allegation. Proposed paragraph 13B was not itself an adjourned infringement issue, but its pleaded reasoning depended on an adjourned issue concerning joint liability between Astronics and Panasonic. It therefore could not be raised on the account. The proposed amendment was disallowed.
6. The application succeeded on the first question and failed on the second and third questions. Counsel were to be heard on the form of order.

This was a first-instance application in the Patents Court. The judgment records the earlier liability trial before Morgan J and his subsequent order, but gives no citation for that decision.