IP and General Civil Restraint Orders

A General Civil Restraint Order against issuing further IP claims

A Civil Restraint Order restricts the subject of the Order – usually a claimant who continues to bring vexatious claims from bringing further claims in the future without the permission of the court.Â

In the context of IP disputes they are rare but a General Civil Restraint Order (RO) was recently granted by HHJ Hacon in the latest of the long running series of disputes between Perry v FH Brundle and others [2017] EWHC 678 concerning Mr Perry’s allegations of patent infringement and related actions for unjustified threats of patent infringement.Â

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.”

A court may order an RO in the following circumstances:

  • 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.

Whilst this may to some appear to be unfair, it allows Court time to be saved from vexatious claims and also costs for the Defendant trying to defend himself claims without a prospect of success.

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