In recent years, the Patents Court has put in place some modernising measures aimed at greatly reducing the costs of the average action. Discovery has been limited, hearings kept shorter and the time to trial is usually now less than a year.
One of the reforms most capable of cutting costs is the introduction of telephone summonses for relatively straightforward procedural issues (Consolidated Practice Explanation, 19 November 1997, para 17).
If both parties agree, instead of a hearing in court, the hearing is dealt with by each side and the judge holding a telephone conference call at a pre-arranged time. The parties can be represented by counsel or by solicitors, but as the hearing is by way of summonses (rather than by way of motion in open court), the system is opened up for use by solicitors alone. In addition to saving the costs of counsel, the expense of travelling to court and waiting for the hearing to commence is saved for all representatives.
Wragge & Co was one of the first firms to use the telephone summons procedure when it was introduced more than two years ago. However, a review of the Patents Court listings (now available on the internet) shows that of the latest 67 applications to the Patents Court, only three have been by telephone summons.
At a recent hearing before Mr Justice Laddie (Robert Hewitt v P McCann, 30 March 1998), the judge discovered that a telephone summons had been suggested by Wragge & Co on behalf of the applicant/defendant but that it had been rejected by the solicitors for the plaintiff. Accordingly, the parties attended court for the hearing.
Judge Laddie took the opportunity when giving judgment in favour of the defendant on the main part of the hearing to remind patent litigation practitioners of the existence of the telephone summons procedure. He did so in the most forceful terms.
He stressed that telephone summonses are available for good reason in order to save costs and that their availability should not be ignored. He commented that if the provisions for telephone summonses are not considered by the profession, then the court may well disallow costs of one or both sides if parties subsequently attend for a full oral hearing.
So the profession has been warned – use the telephone or risk the consequences.