Journal of Intellectual Property Law & Practice Advance Access originally published online on October 19, 2005
Journal of Intellectual Property Law & Practice 2005 1(1):64-70; doi:10.1093/jiplp/jpi001
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© The Author (2005). Published by Oxford University Press. All rights reserved.
Summary judgment in intellectual property litigation—the three of Harts
*Intellectual property consultant, Slaughter and May; Professorial Fellow, Queen Mary Intellectual Property Research Institute Editor, Journal of Intellectual Property Law and Practice; Co-Proprietor, IPKat weblog (www.ipkat.com). E-mail: jjip{at}btinternet.com.
Legal context. The popular image of litigation is one of an often long and expensive full trial. However, better case management means that courts in the United Kingdom increasingly deal with disputes at an early stage, by striking out claims that have no genuine chance of success and by giving summary judgment against defendants whose defences have no hope of succeeding. These procedures, detailed under the Civil Procedure Rules, are frequently invoked in intellectual property disputes. Unlike full trials, which are normally heard before a specialist intellectual property judge, applications for summary judgment and striking out are frequently heard by judges in the Chancery Division who may have little experience of the area.
Key points. This article considers the advantages and disadvantages of deploying non-specialist judges, reviewing in particular three decisions of a non-specialist judge, Mr Justice Hart. It suggests that a specialist judge might have reached a different conclusion in at least one of these decisions. It also questions the policy issue of refusing to strike out a claim that, on the law as it currently stands, has no chance of success where the intention is that the claimant be given the opportunity to invite the trial court to evolve a change in the law through precedental development.
Practical significance. At a time when there is a strong demand for the administration of justice to be both effective and swift, the twin facility of entering summary judgment and striking out is likely to remain attractive and popular with intellectual property litigants. However, it is a facility that should not be abused. The employment of non-specialist judges for the purpose of determining whether that facility should be utilised may produce results that, if justifiable, may run counter to the intuition of those who specialise in the field. Accordingly, judicial practice in this regard should be carefully monitored and reviewed if predictability and consistency of decision-making is to prevail.