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Intellectual Property Law

: IPKat

Overheated dairy warriors back in court

By Johanna Gibson, David Pearce, Jeremy Phillips and Ilanah Simon.

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Last year the IPKat reported on a fiercely-contested preliminary skirmish in the battle of the dairies in JN Dairies Ltd v Johal Dairies Ltd, Gurbir Singh, where a scheduled four-day hearing took twice as long thanks to a superfluity of witness evidence (see earlier IPKat comment here). This decision, in which the trial judge held as a preliminary issue that JN had a good claim against the defendants (one of whom was a former employee) for stealing and using confidential customer information contained in JN's invoices, was affirmed earlier this year by the Court of Appeal (here), following another two days in court, when Lord Justice Stanley Burnton mercifully said: "... I would not set aside a judgment simply because further evidence might be available".

Yesterday the parties were back in court again. The trial judge (Judge Cooke) was faced with an application by the defendants to strike out further particulars pleaded by JN or for summary judgment. The problem was this: having difficulty quantifying its alleged loss of profit, JN pleaded its loss on the basis of the value of the information that it alleged had been taken. The defendants were unhappy at this and submitted that a calculation of loss based on the market value of the information was available only where a claimant would have sold or licensed the information rather than used it itself, which was not the case here.

Judge Cooke, in a decision noted in the Lawtel subscription-only service, dismissed the application for strike-out or summary judgment. In his view it was at least arguable that what JN had lost could encompass the value of the information allegedly taken, in which case an appropriate starting point would be to establish what that information might fetch if sold on the open market. It would well be appropriate to do this when a claimant has difficulty proving loss of profit.

The IPKat thinks that there has been far too much litigation in this trial and thinks it would be therapeutic for the parties to be a little less overheated in their approach to the resolution of this dispute. He has checked and finds, to his disappointment, that hosing the litigants down with ice-cold water, sedating them or making them watch some of the opening matches in this year's World Cup tournament until their blood-pressure is barely detectable are NOT among the case management powers of any British judges. Merpel says, well there's no use crying over spilt milk ...

A less contentious Dairy Battle here

Other competitive milk delivery services here and here (if you think that someone whom you wish to impress might be looking over your shoulder, watch these in private)

Full post as published by IPKat on June 16, 2010 (boomark / email).