A General Civil Restraint Order against issuing further IP claims – Perry v FH Brundle

A Civil Restraint Order (CRO) essentially curtails the number of claims that can be brought by a serial claimant without the permission of the court. They are fairly uncommon as regards intellectual property disputes, but a General Civil Restraint Order (GCRO) was recently granted by HHJ Hacon in the latest dispute between Perry v FH Brundle and others [2017] EWHC 678 pertaining to Mr Perry’s allegations 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.Â

Mr Perry’s first patent infringement claim failed and his subsequent claim was struck out because the issue had already been decided by the court (res judicata). The claimant would go on to make various out of time appeals and endeavored to bring further claims, alleging conspiracy and fraud. HHJ Hacon articulated the following: ‘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.’ He further expounded 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.’

A court may order a CRO in the following circumstances:

  1. the response is graduated and proportionate
  2. the litigant has made a minimum of three claims or applications which were “totally without merit”
  3. the persistence of the litigant is assessed by reference to their conduct as a whole
  4. the court may retrospectively consider the earlier claim or application to be totally without merit.

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