The new climate of litigation, engendered in part by Lord Woolf, encourages courts to take a more proactive role in the litigation. In Bristol and elsewhere, the Mercantile Courts are already streamlining litigation by involving the same judge throughout.
Notwithstanding recent developments, the remaining faults in the jurisdiction include an imbalance in the treatment of the parties on the merits. Plaintiffs have available the summary judgment procedures under RSC Order 14 and CCR Order 9. Although the summary judgment procedure does not always work perfectly in practice, it does discourage spurious defences. Where a defence is arguable, but weak, the court can impose conditions before a defendant is allowed to proceed with the action. Such conditions send a clear signal and encourage settlement.
There is no equivalent protection for a defendant. Weak claims can be brought safe in the knowledge that the day of reckoning will be long delayed. A defendant can apply to strike out but the courts are very reluctant to do so and the burden on the defendant is onerous.
Every litigator has faced a case that should never have been brought. Such cases are brought because plaintiffs are badly advised. If a case is weak but there are no grounds for it to be struck out then the defendant is then subjected to the long road to trial. Where the plaintiff is legally aided, the defendant cannot recover his costs.
There should be a mechanism for challenging, early on in the proceedings, weak claims which have no reasonable prospect of success at trial. One solution would be a reverse Order 14 jurisdiction. The court should be able to review the merits of an action and to dismiss hopeless cases.
If a case is arguable but weak then leave to proceed conditional upon a deposit could be given. Judges should overcome their traditional abhorrence of expressing any view upon the merits of a plaintiff's claim at any stage before trial. If they do not, then the alternative is to continue to let bad cases run for years before falling by the wayside. That is in no one's interest.
Chris Jackson is an associate at Burges Salmon.
Music claim to Chancery
Three US-based companies, Fourhills Music, Hits of SHR and Sugar Hill Records, are heading for a showdown in the Chancery Division. They are seeking damages and court orders banning alleged copyright infringement against London-based record company Charly. They will ask for court orders preventing breach of copyright in records previously released on the following labels: Sugarhill, Vibration Records, Willow Records, All Platinum, Stony Records, Astroscope, Victory Records, Turbo and Jersey Connection.
Patent law to Lords
Patent law in a case involving manufacture of proteins associated with the Hepatitis B virus for use in vaccines is to go to the House of Lords. Petitioners Biogen alleges patent infringement by Medeva. The Law Lords are to be asked to decide what, on a true construction of the 1977 Patents Act, constitutes an invention and when a patent covers more than one invention. They will also be asked to decide on the correct test for claiming a priority date for a patent claim and whether the obviousness of a patent claim is to be assessed on commercial criteria.