Mariya Vasilyevna Lish v The Northern Block Limited & Anor

Summary judgment should be granted only where the claim has no realistic prospect of success and there is no other compelling reason for trial. The court must avoid a mini-trial, but should decide a short point of law or construction where the evidence is sufficient.

A later claim is not automatically abusive merely because it could have been brought earlier. The court must adopt a broad, merits-based assessment, asking whether the later proceedings amount to unjust harassment or oppression. A settlement finally resolves the claims within its scope and may engage the rule in Henderson v Henderson. A party who discovers a connected claim before settlement should ordinarily amend or clearly reserve it, rather than settle and bring separate proceedings.

The claimant designed typefaces for the first defendant under a 2012 agreement, varied informally in 2015. After the relationship ended, she brought proceedings in the County Court at Newcastle concerning ownership, infringement and related remedies. Those proceedings were settled when the defendants accepted a Part 36 offer.

The claimant then commenced these proceedings alleging unpaid royalties, failure to disclose and account for sublicences concerning Neusa Next, and continuing infringement of additional typefaces. The defendants sought summary judgment on the Neusa Next claim and strike out of the other claims as an abuse of process or because they had been compromised by settlement.

The central issues were the meaning and scope of the Part 36 offer, and whether the later claims should be barred under the principles in Henderson v Henderson.

1. Neusa Next claim. The application for summary judgment under Civil Procedure Rules 1998, rule 24.3 was refused. Applying the approach in Easyair Ltd v Opal Telecom Ltd, the claimant had a realistic prospect of success on the construction of the Part 36 offer. The court should not conduct a mini-trial, particularly where the documents admit of competing interpretations. Neusa Next appeared repeatedly in the draft amended pleading, including the infringement allegations and relief sought. It could therefore fall within the offer’s references to relevant sublicences and relevant typefaces.
2. Unpaid royalties. The claim was not a pleaded issue in the Newcastle proceedings when the offer was accepted, and therefore was not compromised as a pleaded claim. Nevertheless, it was abusive under Henderson v Henderson. The claimant accepted that, after receiving the proposed amended defence and counterclaim, she had sufficient information to bring the claim. She could have withdrawn or amended the settlement offer, or made clear that the royalty claim was excluded. Allowing settlement and then suing the same parties concerning the same agreement, subject matter, issues and remedies placed the defendants at a significant disadvantage because the settlement included admissions inconsistent with their earlier case.
3. The court applied the broad merits-based approach described in Aldi Stores Ltd v WDP Group Plc and Dexter v Vlieland-Boddy. The defendants had established unjust harassment and oppression, together with the public interest in finality of litigation and efficient use of court resources. The unpaid royalties claim was struck out under rule 3.4(2)(b).
4. Infringements claim. The claimant accepted that the additional typefaces could have been included in the Newcastle proceedings. They could be in no better position than the unpaid royalties claim merely because the claimant had made a pragmatic decision not to include them. This claim was also struck out.
5. Only the Neusa Next claim remained. The judge indicated that transfer to the IPEC Small Claims Track was likely to be appropriate, subject to hearing the parties on transfer, settlement and costs.