When is a General Civil Restraint Order against further IP claims appropriate?
A Civil Restraint Order restricts the subject of the Order - usually a serial claimant - from bringing further claims in the future without the permission of the court.
They are fairly unusual in the context of IP disputes but a General Civil Restraint Order (GCRO) was recently granted by HHJ Hacon in the latest of the long running series of disputes between Perry v FH Brundle and others  EWHC 678 concerning Mr Perry's allegations of patent infringement and related actions for unjustified threats of patent infringement.
This GCRO follows on from an Extended Civil Restraint Order which was made in September 2015 and expired on 25 March 2017 (and was reported by Jeremy here).
Mr Perry's first patent infringement claim failed. The second was struck out on the basis that it was res judicata (i.e. the issue had already been decided by the court). He then made various out of time appeals and sought to bring further claims which alleged conspiracy and fraud. These claims were primarily founded on the fact that FH Brundle notified their Belgium suppliers when they received Mr Perry's original cease and desist letter.
As HHJ Hacon summarised: "Of course it does not necessarily follow that all the rest of his suggestions of unlawful conduct are as similarly insubstantial, but so far I have seen nothing that puts them above the level of being totally without merit." (ouch!)
A court may order a CRO in the following circumstances (see para  of the judgment for details):
the response is graduated and proportionate;
the litigant has made a minimum of three claims or applications which were "totally without merit";
the persistence of the litigant is assessed by reference to their conduct as a whole;
the court may retrospectively consider the earlier claim or application to be totally without merit.
Although a CRO can appear a rather draconian measure, HHJ Hacon pointed out that:
A CRO acts as a filter much like getting permission to appeal or launch proceedings for judicial review; and
it will actually benefit the litigant as it means that they avoid spending time, energy and money on claims which stand no prospect of succeeding.
Mr Perry is no stranger to the IP court. On 26 March 2014, Mr Perry sent an email to Judge Hacon's clerk, the parties' solicitors and counsel. In that email, Mr Perry stated that he had received a letter purported to come from Judge Hacon himself (it did not). The text of the email was as follows:
26th March 2014 Claim CC13P00980
Dear Mr Perry,
I have re-considered the case CC13P00980 and upon reflection; your opponents (FH Brundle, Betafence and Britannia Fasteners) having used your name on purchase orders for the infringing goods protected under your patent (which seems to be a fundamental point in the case), have colluded to defraud you of substantial sums of profits you were rightfully entitled to and therefore I have reversed my decision in your favour and award £5,000,000.00 in damages that would settle the claim in full.
I apologise that I did not even question your opponents on this issue or the matters concerning the manipulation of design sheets and copyright dates as at the time I didn’t think it was all that relevant.
I order the claimants and counter defendants to pay the claim in full within 14 days and the claim for unjustified threats is dismissed.
Mr Justice Hacon
This serious fabrication of an email from the court, no doubt played a part of HHJ Hacon's decision to grant the order.
To find out more about the issues raised in this blog contact Rosie Burbidge, Intellectual Property Partner at Gunnercooke LLP in London - email@example.com