No.HC07C01118
Neutral Citation Number: [2007] EWHC 3466 (Ch)

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

Royal Courts of Justice
Thursday, 14th June 2007

Before:

MR. JUSTICE BRIGGS

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B E T W E E N :

	RIEMANN & CO. & Ors.	Applicants/Claimants

-  and  -

	LINCO CARE LTD.	Defendant
	
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Transcribed by BEVERLEY F. NUNNERY & CO
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Mr. M. Hicks  (instructed by Redd Solicitors) appeared on behalf of the Applicants.

Mr. R. Hacon (instructed by Barlow Robbins, Woking) appeared on behalf of the Defendant.

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J U D G M E N T
MR. JUSTICE BRIGGS:    

1	This is an application made on notice and by order for an interim injunction pending trial restraining alleged infringements of two community trade marks in respect of Cosmetic Skin Care Preparations, Cosmetic Sun Protection Preparations, Cosmetic Sun Tanning Preparations and Pharmaceutical Sun Protection Preparations and an injunction to restrain passing off.

2	The relevant market is the sale of once a day sun screen protection;  that is a form of sun protection which if put on at the beginning of the day provides the requisite protection to the user without further application for the whole of the rest of that person’s day.  

3	Although presumably there is some limited market for these products for persons going abroad for winter holidays in sunny places, the main sales to consumers, according to the evidence before the court, takes place between April and September in any given year.  The main sales by manufacturers to retailers, according to the claimant, takes place between about March and August or, according to the defendants, takes place between about March and June, tailing off rapidly thereafter.

4	Thus interim relief is sought to protect the claimants’ sales in the 2007 market from alleged unlawful competition from an allegedly infringing product manufactured by the defendant, assuming that a trial will precede the commencement of the 2008 market.  Although neither side has so far sought a speedy trial, I propose to hear submissions about and then give directions requisite to ensure that a trial of this matter takes place by the end of January 2008.  

THE CLAIMANTS’ CASE

5	The claimants say that they have established substantial sales in the United Kingdom of their once a day product and that they have also achieved sales in Denmark, Ireland, Holland and Spain under the name P20.  They say that the product has achieved a substantial and longstanding reputation in the United Kingdom as P20 i.e. rather than Riemann P20 (Riemann being the name of the claimants) that it has been established since commencement in 1989, that sales in 2006 exceeded half a million bottles and that the claimants’ advertising spend on P20 in 2006 exceeded £1 million.

6	They say that they have reputation and goodwill not only in the name P20, but in the get up of the packaging of the product which is sold in 100 ml. or 200 ml. form.  It appears to be packaged in a white cardboard box with printed on the front and the top in black type the name P20;  on the front on a red, orange and yellow banded stripe and, indeed, also on the top, with their name Riemann printed less prominently in a curved format immediately above the banded stripe and the name P20 on the front.  Their product includes an instruction leaflet calling the product P20.  

7	It is common ground that from February 2007 the defendant launched a rival product retailing at between half and two-thirds of the price of P20 in a very similar white box with C20 in prominent black letters on it, above a banded stripe using red, orange and yellow colours and beneath the word Calypso in a curved format with the words Calypso and C20 appearing on the top of the box;  and also with substantial similarities in the leaflet which the claimants’ submit, but the defendant disputes, cannot have been coincidental but which in any event describes the defendant’s product as C20.

8	The claimant says that sales of the defendant’s product in that form (that is the form I have just described and to which I will refer in this judgment as the original form) amounted to breach of Articles 9(1)(b) and 9(1)(c) of the Community Trade Marks Regulation, to passing off and, in relation to the leaflet, breach of copyright.  The community trade marks which the claimant has are a trade mark for the word P20 and a trade mark for the mark P20 in stylised form.

9	The present dispute is not about the original form of the defendant’s product because shortly after a letter before action from the claimants through solicitors on 25th April of this year, the defendant proposed and then implemented a change in the packaging of its product, the changes being to remove the words C20 from the top of the box but leave the word Calypso;  to leave C20 on the front of the box but to change the coloured stripe into a similarly coloured target, that is a series of concentric circles below the word C20;  and to make changes in the leaflet sufficient to address the claimants’ claim that there has been breach of copyright, but to leave the leaflet in a form which still describes the product as C20.  Guided by the leaflet, I shall in this judgment call the defendant’s product C20 and by that I refer, save where I state otherwise, to the product in its modified form.  I do so without prejudice to the question whether the letter number formula, that is C20, is, or was intended to become the characteristic description of the defendant’s product.  That is a matter for trial.

10	The claimant no longer pursues the breach of copyright claim, at least at the interim stage, but persists in the rest of its claim for an interim injunction in relation to the modified form of C20.  

11	At the first hearing of this application before Mann J. on 8th May, the defendant gave undertakings pending today not to supply retailers with the product in its original form, but on terms that permitted them to continue to supply it in the modified form.  The packaging change, according to the evidence, took about two weeks to achieve, but substantial quantities of the product in its original form appear still to be available on retailers’ shelves as having been supplied prior to the 8th May.

12	I must say a little more about the causes of action relied upon.  Article 9 of the Community Trade Mark Regulation provides for relevant purposes as follows:

	“(1)  A Community trade mark shall confer on the proprietor exclusive rights therein.  The proprietor shall be entitled to prevent all third parties not having his consent from using in the course of trade:

	“….

	“(b)	any sign where, because of its identity with or similarity to the Community trade mark and identity or similarity of the goods or services covered by the Community trade mark and the sign, there exists a likelihood of confusion on the part of the public;  the likelihood of confusion includes the likelihood of association between the sign and the trade mark;

	“(c)	any sign which is which is identical with or similar to the Community trade mark in relation to goods or services which are not similar to those for which the Community trade mark is registered, where the latter has a reputation in the Community and where use of that sign without due cause takes unfair advantage of, or is detrimental to, the distinctive character or the repute of the Community trade mark.”

13	Taking Article 9(1)(b) first, it is to be noted, as is apparent from its language, that it is essential for a claimant to show a likelihood of confusion on the part of the public.  It is also evident that there is a large overlap between the cause of action constituted by Article 9(1)(b), and the English common law remedy of passing off, about which I need say no more as to its detail.

14	Turning to Article 9(1)(c) which I have already read, it is common ground that the claimant must establish a reputation in the community, by which it is meant a reputation in a substantial part of the community.  It is common ground that despite its language and, in particular, the phrases in relation to goods or services which are not similar to those for which the Community trade mark is registered, that the protection accorded by Article 9(1)(c) also applies in cases of similar or identical products.  It is common ground because that has been established by the European Court of Justice in two cases, Davidoff v. Gofkid Ltd. [2003] ETMR 42 and Adidas-Salomon v. Fitnessworld 2004 ETMR 10. It is also common ground that the comparison between the language of Articles 9(1)(b) and (c) demonstrates that there is no need as such to prove confusion, or a likelihood of confusion, in the minds of the public for the purposes of a claim under Article 9(1)(c);  more generally the requirements of a claim under Article 9(1)(c) are set out at great length by Lewison J. in L’Oreal SA & Ors. v. Bellaire NV & Ors. [2007] RPC 14.  It would be mere repetition for me to include any more specificity as to those requirements in this judgment.

15	I should, however, by way of exception to that, deal with the perhaps unfamiliar concept to English lawyers of a cause of action constituted by taking unfair advantage of the distinctive character or repute of a community trade mark which is analysed by Lewison J. in the L’Oreal case at paras.142-144 of his judgment as follows:

	“142.  The First Board of Appeal of OHIM described unfair advantage in Case R 308/2003-1 Mango Sport System Srl Socio Unico Mangone Antonio Vincenzo v. Diknak [2005] ETMR 5 at[19]:

	‘As to unfair advantage, which is in issue here since that was the condition for the rejection of the mark applied for, that is taken when another undertaking exploits the distinctive character or repute of the earlier mark to the benefit of its own marketing efforts.  In that situation that undertaking effectively uses the renowned mark as a vehicle for generating consumer interest in its own products.  The advantage for the third party arises in substantial saving on investment in promotion and publicity for its own goods, since it is able to ‘free ride’ on that already undertaken by the earlier reputed mark.  It is unfair since the reward for the costs of promoting, maintaining and enhancing a particular trade mark should belong to the owner of the earlier trade mark in question.’

	“143.  The notion of taking unfair advantage in this sense is that the third party is unfairly using the registered mark to enhance his own business.  Thus in the Mango case itself the Board considered that the registration of the trade mark ‘Mango’ for crash helmets might take unfair advantage of the registered mark ‘Mango’ in relation to ladies clothing aimed at fashionable young women.  The mischief clearly was that the manufacturer of crash helmets would increase his sales by feeding on the reputation acquired by the manufacturer of clothing.  In other words, the one mark supports (or would support) the other.

	“144.  There is one other point I should make.  The mere fact that one product has a free ride on another does not necessarily found liability.  A supermarket cola may sell because of the taste for cola engendered by the promotion of Coca-Cola and Pepsi-Cola.  Likewise, a supermarket packet of cornflakes may sell because of the promotion of cornflakes by Kellogg.  But if the respective marks and signs do not have the necessary degree of similarity, that kind of free riding is legally permissible.  Thus it is the similarity between sign and mark, not similarity between products, which is the key.” 

16	Finally, it is to be noted that in relation to all three of the causes of action relied upon by the claimants, that is, Article 9(1)(b), Article 9(1)(c) and passing off, intention to achieve the prohibited result is neither a necessary nor sufficient ingredient.  Nonetheless, if it is proved that an experienced manufacturer or trader intended to pass off, or intended to obtain an unfair advantage, for example, within the meaning of Article 9(1)(c) it will, in most cases, be easier for the court to infer that that intention succeeded where on the evidence that the question is otherwise finely balanced.  

17	In the present case, the defendant accepts that the claimants have an arguable case for relief at trial under Articles 9(1)(b), 9(1)(c) and under the English common law doctrine of passing off.  But Mr. Hacon, of counsel, who appears for the defendant, submits that the arguable case is nonetheless properly to be identified here and now as a weak one.  Nonetheless, the concession that there is an arguable case for relief at trial means that the issue before me is confined entirely to the question of the balance of convenience as against the grant or refusal of the injunction sought between now and trial which, as I have already explained, means the balance of convenience in that respect during the rest of the 2007 market for the parties’ respective products.

18	But anticipating that the usual factors which go to the determination where the balance of convenience lies might prove to be evenly balanced, both sides spent most of the hearing yesterday urging on me, in the case of the claimant, the strength of the case and, in the case of the defendant, the weakness of the claimants’ case.  This is despite numerous occasions when the Court of Appeal has repeated that these hearings are not to be used as, or to degenerate into, mini trials on the merits.  

19	There is, of course, an exception to that prohibition where the interim injunction or a refusal of an injunction is likely to be decisive either way of the parties’ respective rights so far as the court’s intervention is concerned, a well known example being where what is sought to be enforced are short term covenants by employees restrictive of their conduct after leaving employment, covenants often described as being in restraint of trade.

20	The defendant says that if injuncted it might, or probably would, give up the name C20 for this product regardless of the outcome of the trial.  I am not persuaded that this assertion, even if credible, as to which I will say more below, brings the case into that exceptional category.  I shall, however, briefly address the relative strength of the parties’ cases later in its proper place in the analysis of the balance of convenience. 

21	I turn to the first question arising from the balance of convenience issue, namely, whether if no injunction is granted now but the claimant is successful at trial, will it in the meantime have incurred irremediable harm?  The claimant accepts that the defendant is good for any damages which might be awarded at trial but submits, first, that the amount of loss of profit on sales caused by unlawful or unfair competition from the defendant’s C20 product prior to trial will at trial prove to be more or less impossible to quantify.  In that respect Mr. Hicks, supported by the evidence, points to the effect on the claimants’ year on  year sales historically of different climate conditions, different advertising spend and to the effect of lawful competition from other producers of competing once a day products.

22	Secondly, it is submitted that if no injunction is granted now, the defendant may by the unrestrained marketing of C20 prior to trial, that is during the 2007 season, establish an undeserved and unlawfully obtained reputation for its competing product, free riding, it is said, on the claimants’ goodwill in 2007 as a platform for 2008 onwards, such that even if restrained from using the name C20 after January 2008, a small but sufficient name change will preserve that wrongly obtained goodwill indefinitely into the future with consequences, which Mr. Hicks submits would be wholly incalculable but plainly adverse to the claimants’ sales.  Thirdly, the claimants say that they risk having their reputation in P20 tarnished by association with C20 if C20 should turn out to be a defective or inferior product.

23	As to those submissions, Mr. Hacon for the defendant, says, firstly, that loss of sales can these days be assessed by appropriate forensic methods and that anyway, the 2007 session, that is the season for sales by manufacturers to retailers rather than by retailers to the public, has already reached or past its peak.  As to the second head of potential irremediable harm, that is the establishment of an undeserved platform for further sales after losing at trial but accompanied with a name change, the defendant submits that this is purely speculative.  As to the risk of tarnish by association, Mr. Hacon submits by reference to evidence adduced before me, into the detail of which I need not go, that the defendant has met the claimants’ specified concerns in this regard with evidence that is not now challenged.

24	In my judgment under this heading there is a triable issue whether the sales to retailers have by now, that is in mid-June, past their peak.  The claimants’ evidence puts this in issue and it is impossible for me on the materials available to reach a conclusion on that point one way or the other.  I accept 
	Mr. Hicks’ submission that the effect of the defendant’s continued sales of its product on the assumption that they are later proved unlawful at trial, the effect, that is, of those sales on the claimants’ sales and therefore the claimants’ profit on the sales, would be hard to assess at trial for the purposes of an award of compensation.  I also accept that there is at least a risk that the unrestrained continuation of sales of C20 by the defendant pending trial could establish a platform of goodwill capable of being used in a manner that could not be subsequently restrained in 2008 thereafter.  It is at present, as it seems to me, an unquantifiable risk, but a risk nonetheless.  

25	As to the risk of taint by association, in my judgment the evidence for that has been answered by the defendant’s evidence and it is in my judgment purely speculative whether there is any other, as yet, undefined risk.  It follows that if no injunction is granted now but the claimant succeeds at trial, there is at least a real risk of irremediable harm to the claimant, irremediable not because the defendant would not be good for the money, but because of the very substantial difficulties of establishing the consequence of unlawful competition in a market where annual sales are, as is apparent from the evidence, very substantially affected by other extraneous matters.

26	I turn to the second main question, namely, whether if an injunction is to be granted now but the defendant succeeds at trial, the defendant would suffer irremediable harm.  The first item for analysis is, of course, the defendant’s loss of profit on sales.  Again, the defendant accepts that the claimants are good for their cross-undertaking in damages.  It is also to be noted that there is in this case no application by the claimants that existing stocks already sold to retailers by the defendant in either the original or the modified form, be withdrawn;  and it is also to be noted that the defendant’s case is, although 
	I find that there is a triable issue about this, that its 2007 sales have already reached or past their peak.  The consequence of that submission is that the defendant has not put loss of profit on its sales in the forefront of its case for the risk of suffering irremediable loss if wrongly restrained now.  Further more, it is a fair comment, as it seems to me, that a loss of specific sales caused by the grant of an injunction is not inherently as hard to quantify as a loss caused by competition to sales of a competitor where the competitor is affected by numerous extraneous factors.  

27	The main plank of the defendant’s case on irremediable harm is to be summarised under the heading “taint”.  Mr. Hacon submits, first, that once it becomes known among the defendant’s customers, that is through whom the product reaches the consumer market, that an interim injunction has been granted requiring a cessation of deliveries or a further re-branding of the product, that will cause a loss of faith and damage to the defendant’s reputation with its retail customers which, on the hypothesis that it succeeds at trial, would be wholly undeserved even though, of course, as Mr. Hacon acknowledges, an interim injunction granted on Cyanamid principles in fact expresses no view by the court either on the merits of the case or on the conduct of the party restrained.

28	Secondly, Mr. Hacon submits that an injunction now will cause the defendant to have to make two further changes in its packaging on the assumption that it succeeds at trial, that is a change from the modified present form to a form which does not include the words or the letters C20 and a change back to include that expression if it succeeds at trial.  If, therefore, a second and third change of packaging attributable to the claimants’ complaints which, on this hypothesis, are to be assumed ultimately to be shown to be wholly unjustified, that, says, Mr. Hacon, supported by evidence from his client, is likely to be so terminally damaging to the defendant’s reputation with its retailer customers, that in all probability the defendant will simply, if injuncted now, give up using the C20 as a name for its product regardless of the outcome of the trial.

29	The claimant responds to this point, first, by submitting that the fact that the changes to the packaging will be the second and third rather than the first and second changes, arises because the defendant misjudged its first modification to its packaging, misjudged in the sense that no doubt it hoped that that modification would be sufficient to ensure that there would be no interim or, for that matter, final injunction at trial.  Otherwise, the claimant submits, the consequence of an injunction in leading to a change in the defendant’s marketing followed by a change back after a success at trial is nothing out of the ordinary.  Secondly, Mr. Hicks submits that the court should treat with reserve, at any rate before examination at trial, an assertion, even if made in a witness statement, that the defendant will permanently abandon the use of this so far apparently very successful name if it is restrained now but succeeds at trial.  Thirdly, it is submitted by Mr. Hicks that the defendant must have gone into its campaign for the sale of C20 knowing at least of a risk of trouble because of its similarity with P20, even if it was minded to think that it had nonetheless acted, albeit just, on the right side of the relevant legal boundary.

30	As to these competing submissions, in my judgment the conclusions to which 
	I can and do come at this interim stage are as follows:  first, the loss of profit on sales of the defendant’s product is an obvious risk associated with an injunction but neither a large one, at least on the defendant’s case, that its marketing has at any rate reached or past its peak this season, nor, as difficult to quantify as the claimants’ potential loss of sales if the competition is allowed to continue unrestrained.  In that context, the evidence shows that the defendant has been, at the same time as selling C20 to most of its retailers, selling a very similarly packaged product of identical material in a package which does not bear the name C20 through a particular retailer called Matalan at a significantly discounted price.  In my judgment, that parallel selling which is not sought to be restrained by the claimant, may well offer a useful benchmark for the quantification of any loss of sales or loss of profit occasioned by an interim injunction. 

31	There is in my judgment some force in the defendant’s submissions that it will suffer a taint or fatal loss of confidence with its retailers if forced to make second and third changes to its packaging on the assumption that it is restrained now but succeeds at trial.  As to the first point, namely, that retailers will misinterpret the meaning of an interim injunction, I entertain real doubt whether sophisticated retailers would misunderstand the nature of an interim injunction.  It seems to me they can be shown this judgment if necessary by the defendant which expresses no decision one way or the other on the merits and no conclusion about the quality or otherwise of the defendant’s conduct.

32	As I have said in previous cases, I consider that it is wrong in principle for the court to shrink from an otherwise just grant of interim relief due to an apprehension that third parties will misinterpret it.  Furthermore, as to the second aspect of taint relied upon by the defendant, I do treat the alleged probable abandonment permanently of C20 if restrained between now and trial with reserve.  That evidential assertion is, to my mind, pre-eminently one which is fit to be tested at trial and which may or may not at trial ultimately be believed.  That said, I express no disbelief about it now, but simply that the assertion raises a triable issue.  

33	Furthermore there is some force in the claimants’ submission that the defendant is likely to have appreciated at least a risk if, as Lewison J. described it in the L’Oreal case, it sailed close to the wind without prior clearance of its proposed campaign from the claimant, even if it is shown at trial that although it sailed near the wind, its campaign never got itself into irons or, as Lewison J. described it, never capsized.  By that, of course, I mean even if it was shown at trial that the defendant kept itself on the right side of the law.  Nonetheless, not withstanding those submissions, which I have accepted in part, it does seem to me that there is at least some risk of irreparable harm to the defendant if wrongly, as it may turn out at trial, it is restrained now.

34	The two main features which arise, therefore, on an assessment of the balance of convenience come down, the first, in favour of the grant of relief and the second in favour of the refusal of it.  I must therefore consider other relevant factors.  The first is the status quo ante.  In my judgment that is not a helpful consideration in a case such as the present where the conduct complained about has both begun and become established prior to the claimant becoming aware of it.  It raises to my mind an insuperable difficulty of deciding whether the status quo ante is merely that immediately prior to the issue of proceedings, which would favour the refusal of an injunction, or prior to the commencement of the conduct complained of, which would favour the grant of it.

35	I turn therefore to the question of strength of case.  The defendant submits, firstly, that there is no clear evidence despite (no doubt) research by the claimant since it discovered what was going on earlier this year, of actual confusion in the mind of the public.  Mr. Hacon submits that that absence is a serious threat to the likelihood of success of the claimants’ claim in passing off and under Article 9(1)(b).  Secondly, Mr. Hacon submits that there is no evidence before the court that the claimants have established a substantial reputation in the community to the level required by Article 9(1)(c).  More generally, the defendant’s case is that it has just transferred an old name, that is C20, which it used in the late 1990s and then discontinued in relation to a sun care product which was not a once a day product, because it means “C”, i.e. Calypso and “20”, i.e. a sun protection factor of 20.  The defendant, I wish to make it clear, denies any intention on its part either to act unlawfully or to take any kind of free ride, as is described by Lewison J. in the L’Oreal case, in relation to Article 9(1)(c) on the claimants’ goodwill or upon the claimants’ marketing efforts.  Those issues are in my judgment a matter for trial.

36	The claimants say that there are often good reasons for not being able at an early stage in a passing off case to find evidence of actual confusion.  Many customers are simply taken in, and go away happily with their product evermore.  Other customers, who are not taken in, do not think it worth doing anything about it and therefore there are cases in which the court has no evidence of actual confusion but, nonetheless, concludes that there is a sufficient likelihood of confusion, both for the purposes of passing off and under 9(1)(b).  

37	As to the point about substantial reputation in the community, the claimant submits, firstly, that the point was taken for the first time in the defendant’s skeleton argument at this hearing but, regardless of that, submits that by analogy with General Motors Corporation v. Yplon, a case in the European Court, Case C-375/97 which was about a similar trade mark regime affecting the Benelux countries, a reputation or a substantial reputation in part of one member state is good enough for the purposes of establishing a substantial reputation in the community.  Mr. Hacon submitted that what may be good for a regime where there three member states, as in the Benelux countries, is not obviously good for a regime in which the relevant community has 27 member stages and he uses Malta as an example to test that proposition to destruction.

38	As to the question of strength of the parties’ cases, I am not persuaded that the claimant has either a weak or, for that matter a strong case overall.  As to the question of confusion, that may prove to be a difficulty for the claimant at trial in relation to its claim under Article 9(1)(b) and in relation to passing off but not, of course, in relation to its claim under Article 9(1)(c) where, as I have said, confusion is not a necessary ingredient of the cause of action.  As to the point that there is not before the court sufficient evidence of a reputation in the community, in my judgment the claimant has at least an arguable case in law based upon the General Motors Corporation v. Yplon case, but, in any event, its particulars of claim identify sales of the product not merely in the United Kingdom but also in Denmark since 1980, Ireland for over 18 years and in Holland the same.  It is fair comment that the point as to reputation is not then specifically spelt out in relation to those countries, but in my judgment it would be wholly premature for me to conclude that this is going to be a fatal obstacle or even a serious weakness in the claimants’ case at trial, the point in question only just having arisen.  It follows that an analysis of the relative strengths and weaknesses of the parties’ cases is of no particular assistance to me in determining where the balance of convenience lies.

39	Mr. Hacon, for the defendant, introduced an additional ground for declining an interim injunction even if I were otherwise minded to grant one, which may be labelled “abuse of process”.  He referred me to the rules as to pre-action conduct which apply even in cases where there is no specified pre-action protocol, that is in cases such as the present, but which undoubtedly require the parties to approach the commencement of litigation in a way which is designed to ensure as far as possible that all avenues for settlement without recourse to litigation are explored to the extent that the urgency of the case permits.  He points to the fact that the letter before action, which was a letter to desist or else, gave a mere 48 hours to the defendant to cease the conduct complained of and that the defendant responded promptly through trade mark agents, suggesting a meeting and time for discussion to see if the matter could be compromised, but that proceedings were launched nonetheless.

40	In my judgment it will remain to be determined at trial whether this complaint is well founded.  The claimants’ case in this regard is, as is reflected in the relevant correspondence, that by the time they had discovered the matters complained of and taken advice from appropriately qualified lawyers, the 2007 market for the sale to retailers of the two competing products was well under way and that it was a matter of very considerable urgency that a regime pending the trial of the claim, if trial there had to be, be established as soon as possible.  In the event discussions, I am told, did take place and it is to be noted that the modification to C20 which I have described was implemented in a form which was then approved as a regime pending the hearing today, but, of course, not as a regime pending the trial, by a order made by consent before Mann J.  But it is evident that discussions so far have not resolved the matter between the parties and it will not be until trial, for example, that it can be established whether the claimants’ claim that the defendant acted both deliberately and in a sense behind the claimants’ back, can be proved to be well founded or ill founded.  In any event, as it seems to me, a failure to comply with the requirement to seek to avoid litigation if possible, even if proved at trial, is a failure which in the circumstances of this case is likely to sound in a remedy for costs, rather than in the deprivation of relief which, apart from that consideration, the court thinks ought otherwise to be granted. In those circumstances it is not a factor which plays any significant part in the balance before me.

41	In the result, therefore, the considerations of the balance of convenience which I have thus far set out marginally favour the grant rather than the withholding of an interim injunction pending trial.  They do so because although there is a risk of irreparable harm either way, in my judgment the risk is a little greater for the claimant if no injunction is granted than for the defendant if interim relief is granted.

42	There is, however, another factor which in my judgment also points significantly towards rather than away from the grant of interim relief, which 
	I would label “fairness”.  The factor may be illustrated by the following comparison:  assume that no interim relief were to be granted.  If the claimant succeeds at trial it will have suffered a whole season of unlawful and/or unfair competition.  Of course, it is too late now to obtain an injunctive remedy to prevent that in relation to the first half of the 2007 season.  Whereas, and, again, if no injunction is granted but the defendant succeeds at trial, it would, of course, have suffered no adverse effect at all, at least as a result of anything done by the court.

43	Contrast that with the position if an injunction is now granted.  If the claimant succeeds at trial, it will still only have had protection from the court in respect of half or, on the defendant’s case, less than half of the 2007 season;  whereas if the defendant succeeds at trial it will only have been subjected for half or, in its case, less than half of the season to inappropriate restraint.  There is, on that analysis, a broad balance in terms of the risks and fairness or otherwise by the grant of relief rather than the withholding of relief in circumstances where the court as at present cannot know what the result at trial is going to be.  Putting it another way, if an injunction is granted now, then the risks for the party which is successful at trial are broadly balanced where, if it is withheld now, there is an almost complete imbalance in consequences of success or failure at trial.

44	For that, perhaps unusual reason, namely, that it seems to me that the grant rather than the withholding of interim relief is in a broad and rough sense fairer than its withholding, and for the reason that the conventional analysis of the balance of the risks of irreparable harm points marginally in favour of the claimant, I propose to grant the interim relief sought, subject to submissions about how the order should be precisely phrased.

MR. HACON:  My Lord, just on that point, how it should be phrased ----

MR. JUSTICE BRIGGS:  Yes, we have not looked I think in any detail at the minute of order.

MR. HACON:  We have not.  Could we do it now because I think it is fair to say that my learned friend’s application was purely on C20, so I think the starting point would be the injunction relating to the use of C20 as opposed to anything else.

MR. JUSTICE BRIGGS:  I think that is how Mr. Hicks put his application.

MR. HACON:  Yes.

MR. JUSTICE BRIGGS:  Would it not be better for Mr. Hicks to tell me what he wants and for you to tell me why he should not have it?

MR. HACON:  Yes.

MR. HICKS:  Shall I take you to the order which appears at Tab 2.

MR. JUSTICE BRIGGS:  File 1?

MR. HICKS:  File 1.  The injunctions at 2.1 and 2.2 ----

MR. JUSTICE BRIGGS:  Well, the leaflets issue has gone.

MR. HICKS:  The leaflets issue has gone, so that can ----

MR. JUSTICE BRIGGS:  On the assumption that is has sort of gone and not gone because that in a sense is already built into the regime up until today.

MR. HICKS:  Yes, I am assuming ----

MR. JUSTICE BRIGGS:  The infringing leaflets, I am not sure it has gone, because the infringing leaflets are the original leaflets.

MR. HICKS:  That is right, the infringing leaflets is defined in 10.1 as any words, any leaflet, which has wording the same or substantially the same as that exhibited leaflet. 

MR. JUSTICE BRIGGS:  It may be sufficient to put in a proviso that the current leaflet is not thereby prohibitive.

MR. HICKS:  Yes, I think we could agree something ----

MR. JUSTICE BRIGGS:  I am just noting where things are going to have to change, proviso to preserve current leaflet save for the use of C20 on it.

MR. HICKS:  Yes.

MR. JUSTICE BRIGGS:  Other than C20.  Yes.

MR. HICKS:  Then 9 contains the definition of prohibited goods and it is fair to say that 9.1., 9.2. and 9.3 are with reference to the original C20 packaging because they are exhibits.

MR. JUSTICE BRIGGS:  I think this is where Mr. Hacon’s point comes into force, is it not?  It seems to me that what you have argued for is not a wholesale changing of the box which might, for example, render unlawful the Matalan box, but something which uses C20 on it.

MR. HICKS:  Yes, in fact that is right.  All I need is 9.4.

MR. JUSTICE BRIGGS:  Yes.  So put a cross against 9.1, 9.2. and 9.3 and put in 9.4.

MR. HICKS:  Yes.

MR. JUSTICE BRIGGS:  The provisio about infringing leaflets can come in at 10.3 presumably.

MR. HICKS:  Yes

MR. JUSTICE BRIGGS:  Leaflet proviso.

MR. HICKS:  I am sure that my learned friend and I can agree some form of suitable wording for that.

MR. JUSTICE BRIGGS:  What about the disclosure requirement in 3, is that contentious?  There has been no argument one way or the other about it.

MR. HICKS:  I think we know already because we have been provided with a list.

MR. JUSTICE BRIGGS:  You have been given a list.

MR. HICKS:  Yes.

MR. JUSTICE BRIGGS:  So you do not need 3.

MR. HICKS:  I do not need 3, no.

MR. JUSTICE BRIGGS:  Is it a verified list?

MR. HICKS:  Yes.

MR. HACON:  It is attached to the exhibits.

MR. JUSTICE BRIGGS:  So it is a verified list then.  That is fine, in which case we can cross out the whole of 3.

MR. HICKS:  Yes.

MR. JUSTICE BRIGGS:  4 is obviously sensible.

MR. HICKS:  Yes.

MR. JUSTICE BRIGGS:  Parties we have not yet reached.

MR. HICKS:  No.  

MR. JUSTICE BRIGGS:  Shall I hear Mr. Hacon to see if thus amended he has continuing concerns?

MR. HICKS:  Yes.

MR. HACON:  Thus amended, my Lord, I have no objections.  I would ask for this, that there be a two week stay.  Your Lordship will have heard that it takes two weeks to change the packaging.  So there is time at least to minimise the disruption with Linco’s retailers and Linco will not have to suddenly cancel an order which retailers are expecting and hoping for.  Obviously that will cause significant bad relations between the retailers and Linco, so a two weeks stay to allow that change to happen.

MR. JUSTICE BRIGGS:  Anything else?  I will then hear Mr. Hicks again.

MR. HACON:  Nothing else thus far, no.

MR. JUSTICE BRIGGS:  Mr. Hicks?

MR. HICKS:  We are pretty unhappy with that because of the evidence that there is an order for 10,000 going out.

MR. JUSTICE BRIGGS:  It seems to me that if an order has been contracted for, in other words a binding contract to supply has been entered into, the court ought not to interfere with that contract. 

MR. HICKS:  One does not know whether it would be ----

MR. JUSTICE BRIGGS:  Well, I do not know, but it may be that an order phrased in those terms that preserved the liberty not to make fresh supplies for which there is not today a contractual obligation, but to make supplies which are already contracted.  Leaving it over to trial, if there is a dispute about whether a supply was contracted is a perfectly understandable concept.

MR. HICKS:  Yes.  I suppose there are two issues.  Is there an obligation to supply that quantity and, if so, by when?

MR. JUSTICE BRIGGS:  Well, that is vital to the terms of the contract.  If they have got a contractual obligation to deliver because, let us say, there is a master agreement with a retailer which provides that a contract comes into existence when the retailer sends in an order form, then they ought to deliver it, it seems to me.  It also seems to me that the taint point would be of particular force from the defendant’s point of view, if it has to break an existing contract, rather than simply give them a blanket two weeks to offload as much further as they can into the market place between now and the end of the season, which is what you will say they will try and do.

MR. HICKS:  Yes.

MR. JUSTICE BRIGGS:  I make no comment either way whether they would, but it would simply provide an opportunity.

MR. HICKS:  Yes.  

MR. JUSTICE BRIGGS:  Well, Mr. Hacon, what do you say about that?

MR. HACON:  I have taken instructions.  I am content with that.

MR. JUSTICE BRIGGS:  I am sure the two of you can derive a formula.  What 
	I have in mind is that there should be an injunction to restrain any further supplies save for such supplies which as at now, that is a.m. today, let us say lunch time today to give you time to ring up the office, as at 1 o’clock today have been contracted for – well, as at the date of notification of this order to your client.  Is there any client represented present?

MR. HACON:  Yes, Mr. Richardson is here, yes.

MR. JUSTICE BRIGGS:  He is here.  Well, then, as at now have been contracted for.

MR. HACON:  I suppose it is theoretically possible that a director ----

MR. JUSTICE BRIGGS:  Let us say 12 o’clock.  Surely a message can be got out the moment we finish with these matters?  Let us say as at 12 o’clock.  

	Now, is that it on the order?

MR. HACON:  Save as to costs.

MR. JUSTICE BRIGGS:  Yes, of course, I am leaving costs aside for the moment.

MR. HICKS:  The issue of costs then, I suppose as an issue of principle should you make – I am obviously going to ask for my costs in some form or another.

MR. JUSTICE BRIGGS:  Yes.

MR. HICKS:  The question is where one has decided a case on balance of convenience what the fair thing to do is.  

MR. JUSTICE BRIGGS:  Yes.

MR. HICKS:  My submission is that being the issue which this application has been concerned with, I have been successful on that, so in principle I should have my costs.  It is simply that.  The question is whether I should have them now, assessed now, or whether it should just be my costs ----

MR. JUSTICE BRIGGS:  Are they capable of being summarily assessed?

MR. HICKS:  We have each put in costs schedules.

MR. JUSTICE BRIGGS:  So they are ----

MR. HICKS:  They are.

MR. JUSTICE BRIGGS:  ---- in principle capable of being summarily assessed, or whether you should have an interim payment.

MR. HICKS:  Yes, interim payment on account ----

MR. JUSTICE BRIGGS:  Yes, very well.  What do you say, Mr. Hacon?

MR. HACON:  My Lord, that would certainly be a departure from the usual rule.  The usual rule is that a successful party on an interim injunction gets its costs in the case.

MR. JUSTICE BRIGGS:  Is that still the usual rule?  My recollection is that there has been quite a move in the last few years to treating heavy interim applications as ones on which costs follow the event of that application.

MR. HACON:  My Lord, the old logic still applies.  If it turns out the losing party was justified at trial, then the whole underlying reason for the interim application caused ----

MR. JUSTICE BRIGGS:  Well, that was the original logic.

MR. HACON:  Yes.

MR. JUSTICE BRIGGS:  And the change, as I understand it, has occurred because of the ever increasing cost of litigation and the need to focus people on their prospects of success on a particular application.

MR. HACON:  Indeed, my Lord, but, nonetheless ----

MR. JUSTICE BRIGGS:  You say as a general rule, I mean, is there any recent authority?  My recollection, but I cannot put names to it, is that the tendency has been to move towards making costs follow the event orders on heavy interim applications.  The decision is quite different, of course, if it goes off by consent or on the first hearing before the judge, or something of that kind, where costs in the case order may be appropriate.

MR. HACON:  My Lord, in my submission it is rather the other way round, in this sense, there has been no authority which has said, well, the old practice has changed.  

MR. JUSTICE BRIGGS:  I am bound to say that my recollection is that it had started to change even before the CPR came into force.

MR. HACON:  There were always exceptions; there were exceptions to the option.

MR. JUSTICE BRIGGS:  Not by way of exception, but by way of treating interim applications as essentially turning on their merits.

MR. HACON:  There are certainly authorities for the proposition that where the interim application is entirely a self contained application, for example, it does not really have any connection with the merits of trial, the court took the view that that was self-contained, was usually the expression used, and therefore because there was not that relationship to the issues at the trial, the costs should go one way or the other according to who won.  But on this kind of application where both sides are necessarily arguing on different
	assumptions ----

MR. JUSTICE BRIGGS:  Of course.

MR. HACON:  ----  considerations are different.  My Lord, I do not think that underlying logic has changed.  I certainly know of no authority which has said so, save for these other kinds of applications which your Lordship may have in mind.  If my learned friend can point to an authority which has changed that logic, of course I would accept it, but I am certainly not aware of one.

MR. JUSTICE BRIGGS:  My difficulty is that I am aware of it, but I cannot put names to them.  I do not know, and I am certainly not aware of one in the particular context of a trade off application.

MR. HACON:  It is very context dependant;  costs always are, are they not?

MR. HICKS:  My Lord, I cannot produce an authority off the top of my head, but certainly my understanding is that it is always at the discretion of the court, but the court tendency was to try to deal with the costs.

MR. JUSTICE BRIGGS:  If you have Volume 2 of the White Book, you will find the Chancery Guide.  For some reason my 2007 Volume 2 is not here, but I am getting my copy.   (After a pause):  The Commercial Court guide comes to our rescue.  

MR. HICKS:  I think we are stuck on this then.

MR. JUSTICE BRIGGS:  You are stuck.

MR. HICKS:  Yes.

MR. HACON:  All the notices, I am sure your Lordship has read it in the Chancery Guide, I am looking at p.41 of Volume 2, 11.3:

	“The court will generally make a summary assessment of costs whenever the hearing lasts for less than one day.  The Judge or Master who heard the application or other hearing (which will include a trial…) carries out the summary assessment.  The court may decide not to assess costs summarily ….” 

MR. JUSTICE BRIGGS:  Yes, that does not really help.  That is just on summary assessment, is it not?

MR. HACON:  Quite.  It just indicates that it would not arise where the court takes a view that it is costs in the case, or it is claimants’ costs in the case.

MR. JUSTICE BRIGGS:  Perhaps I should ask this, since I am going to be making directions anyway:  is it anticipated that the witness statements used on this application will stand for the trial or are you going to start all over again?

MR. HICKS:  I think we might use some of the exhibits, but I think probably both sides will start over again because they have come in in a fairly strange sequence.

MR. JUSTICE BRIGGS:  Yes.

MR. HACON:  What I am told, and it does not surprise me, is that there will be a new document but it will be off the word processor, so it will substantially be the same thing.

MR. JUSTICE BRIGGS:  Is there anything else you want to add?

MR. HACON:  My Lord, I do not think I can help you further on that.

MR. JUSTICE BRIGGS:  No.

MR. HACON:  Save I should perhaps say this, if your Lordship were minded to make an assessment of costs now, the claimants’ costs ----

MR. JUSTICE BRIGGS:  Well, not all of the costs, assessment has not yet been reached.  

MR. HACON:  That is right.  I would urge on your Lordship that that should be left until trial for two reasons, one ----

MR. JUSTICE BRIGGS:  Assessment.

MR. HACON:  Yes, the assessment should be left until trial for two reasons, one, because it is inevitably less expensive if you have one assessment and, two, the old logic - if it does not take one as far as saying it is claimants’ costs in cause - still applies and therefore because the whole matter turns as a substantial part on what is decided at trial, it is appropriate that it should be left until then rather than dealt with at this stage.

MR. JUSTICE BRIGGS:  Can you tell me where the costs schedules are?

MR. HICKS:  I can hand them up.  I have got one on each side.  (Same handed)

MR. JUSTICE BRIGGS:  Thank you.  Is there anything you want to add? 
	Mr. Hicks? 

MR. HICKS:  In terms of the costs schedules, our costs are higher ----

MR. JUSTICE BRIGGS:  No, I am not talking about assessment at the moment,
	I am simply looking to see what sort of costs burden has been incurred in relation to these applications.  These schedules are no doubt just in relation to these applications ----

MR. HICKS:  That is right, yes, as I understand it.

MR. JUSTICE BRIGGS:  ---- rather than the actions of others.

MR. HICKS:  Yes.  Our schedule certainly is specifically limited to this application.  Our simple submission is that these applications are decided on an issue which will not actually be an issue at trial, namely, balance of convenience and therefore a presumably discrete issue.

MR. JUSTICE BRIGGS:  Thank you.  Mr. Hacon, I will not stop you adding if you want to, although you have now had three bites.

MR. HACON:  It has been pointed out to you, of course, that a lot of those costs go to the application before Mann J.

MR. JUSTICE BRIGGS:  What did Mann J. do?  Presumably he reserved those costs to today?

MR. HACON:  He reserved them to today, that is absolutely right.  I do remind your Lordship, there will be a lot of duplication for the work done at trial.
	A lot of this will just be transferred over, so effectively they will become trial costs.

MR. JUSTICE BRIGGS:  Very well.  

45	I must deal with the costs of this application.  The claimant seeks an order for the whole of its costs of this application to be summarily assessed and paid forthwith.  The defendant’s main submission is that although it has lost on this application, there should only be an order for claimants’ cost in the case and that in any event, assessment should await trial.  In the alternative, the claimant asks for an interim payment.  

46	I will deal with interim payment and assessment in due course, but those considerations are of some relevance to the general incidence of costs.  There is no doubt, as Mr. Hacon submitted, that the traditional approach to the costs of an interim application, where the rightness or otherwise of a party’s stance overall remained to be determined at trial, was to make an order that the successful party’s costs be costs in the case rather than an outright order.  Equally, my experience is, although the parties were unable and I could not recall the name of the particular authorities in which this has been spelt out, that the long tendency which started in this Division, I think a little before the coming into force of the CPR, which has been encouraged by the need to attain the overriding objective, is to treat heavy interim applications as turning so far as costs is concerned on their merits, that is to treat the general principle that costs follow the event as applicable to the event constituted by the outcome of an interim application.  Nonetheless, the costs order appropriate to any case is fact sensitive.

47	Plainly the claimant has won on the issue of this application which has been concerned, as is apparent from my judgment, entirely with the question of where the balance of convenience lies in a case in which at least by the hearing before me, it was conceded that there was an arguable case on issues which could only be determined at trial.  Nonetheless, a considerable part of the evidence was taken up and indeed the submissions were taken up with issues as to the strength of the parties’ relevant cases rather than merely as to the balance of convenience.  Both in terms of the preparation of evidence and submissions work was therefore no doubt done which will be of value in the preparation for trial.  In particular, although it may be that fresh witness statements will be prepared for trial so as to exclude the relevant material about the interim balance of convenience, as Mr. Hacon said, the use of word processors will mean that the existing evidence can be compressed into new witness statements from material which has already no doubt been prepared at considerable time and expense.

47	There is therefore a risk, if I were to make an outright order for costs now, it would include the cost of work done and time spent on the merits, where the merits have yet to be determined, and not merely the cost of work done, time spent on what is genuinely the subject matter of this application, namely the balance of convenience.  In those circumstances I am not persuaded that an outright order for costs now in favour of the claimants would be appropriate but, nonetheless, it does seem to me that the order should reflect to an appropriate degree the principle that heavy interlocutory applications turn in terms of costs on their outcome, which is a salutary principle, focusing the parties’ eyes on the need to assess carefully the prospects of success or failure on an interim application regardless of the merits which may be proved or not proved at trial.

48	The order which I therefore propose to make is that half of the claimants’ costs of and occasioned by this application should be payable in any event and that the other half should be the claimants’ costs in the case.  That other half will include the costs reserved by Mann J. at the hearing before him on the 8th May.
	I will hear submissions now on assessment and interim payment because 
	I think I indicated to Mr. Hacon that I was dealing with incidence at the stage which I have so far reached.  

	It seems, Mr. Hicks, somewhat unrealistic to have a summary assessment of half your costs of this application.

MR. HICKS:  I respectfully agree.  It may therefore be sensible to make an interim payment to reflect that I am bound to recover something. My costs are £56,000, so if one were to say half of that, £28,000 and then a core minimum might be half of that, so I would suggest an interim payment of £14,000.

MR. JUSTICE BRIGGS:  What do you say about that, Mr. Hacon?

MR. HACON:  I think that is about right, yes.

MR. JUSTICE BRIGGS:  I propose to accede to that invitation.  This is not a case in which it would be sensible summarily to assess costs where there has been a mixture of work on the merits and on the balance of convenience and I propose to accede to Mr. Hicks’ submission, which Mr. Hacon did not oppose, to split the claimants’ costs element of £56,000-odd in half and then to award an interim payment against the half of £14,000.  28 days, Mr. Hacon?

MR. HACON:  Yes, my Lord.

MR. JUSTICE BRIGGS:  I so order.  Directions for trial we need to deal with.

MR. HICKS:  I have done some thinking about that.  You have given an extension of time for service of the defence.  

MR. JUSTICE BRIGGS:  Shall we treat this in what I would call a case management conference way, that is not standing on ceremony with 
	Mr. Hacon responding, as it were, stage by stage?  The first thing you want is an order for a speedy trial, is it not?

MR. HICKS:  That is right.  In terms of time estimate, of course it is difficult, but we would have thought this was about four to five days.

MR. JUSTICE BRIGGS:  Let us look at that first.  The modern practice is to look at the trial and then fill in everything in between.  Mr. Hacon, four to five days?

MR. HACON:  About five days, yes.

MR. JUSTICE BRIGGS:  Five day trial.  Time estimate five days window, it must be over, must it not, and judgment delivered by the end of January? 

MR. HICKS:  Yes.

MR. HACON:  Yes. 

MR. JUSTICE BRIGGS:  Is really January not too late for a trial?

MR. HACON:  I suspect it is.  

MR. JUSTICE BRIGGS:   I would have thought so.

MR. HACON:  December is the realistic deadline.

MR. JUSTICE BRIGGS:  So speedy trial, estimate five days, window to close by end of December, well, close by the end of that term such as the trial concludes that term.  So a window by one week before the end of the term because the window only relates to the start of the trial, as I understand it.

	Now, directions for that purpose.  There is an extension for a defence.  Is that a definite extension until when?

MR. HICKS:  We have given an extension to take it to the 26th June.

MR. JUSTICE BRIGGS:  Any difficulty with that, Mr. Hacon?

MR. HACON:  No. 

MR. JUSTICE BRIGGS:  I think not with your submissions yesterday.   

MR. HACON:  It is virtually there, I think.

MR. JUSTICE BRIGGS:  26th June.  I would quite like to shorten that period if it is nearly there.  

MR. HACON:  I would imagine it could be dealt with within seven days probably.

MR. JUSTICE BRIGGS:  Yes.  We are now on the 14th.  Shall we say the 21st?

MR. HACON:  Yes.

MR. JUSTICE BRIGGS:  Reply, seven days?

MR. HICKS:  Seven, yes.

MR. JUSTICE BRIGGS:  So reply 28th June.  Disclosure, preparations must be well on the way, must they not?

MR. HACON:  Yes, but we have obviously got a lot of documents.

MR. JUSTICE BRIGGS:  Yes.

MR. HACON:  One issue that is ----

MR. JUSTICE BRIGGS:  What about liberty to disclosure?   

MR. HICKS:  The big burden of disclosure will be if there is going to be an issue of overseas reputation.  It may be we can deal with that by admission.  What we certainly do not want to do is to spend a lot of money trying to prove reputation overseas.  It may be possible to do by consent.

MR. JUSTICE BRIGGS:  I am not sure we can do better at the moment because there is not even a defence in yet, than to say general disclosure, standard disclosure, but with liberty to apply to limit it and an encouragement to the parties to limit it by agreement.  Indeed, a direction to the parties to explore limitations of disclosure by agreement but with liberty to apply if nothing is agreed.  It does seem to me that you have gone far enough in the evidence to know where the real factual questions are, even if the pleadings notionally disclose that the issues appear to be wider.

MR. HICKS:  Yes.  

MR. JUSTICE BRIGGS:  And by I suppose mid-July?

MR. HACON:  Yes.

MR. HICKS:  Can I just say ----

MR. JUSTICE BRIGGS:  You are abroad, are you not, Mr. Hicks?

MR. HICKS:  Yes, that is what is worrying me slightly.

MR. JUSTICE BRIGGS:  Yes, I understand that. 

MR. HICKS:  I think we were hoping for something more like August.  It should not affect the trial date, but we do have to get stuff out of Denmark and all we have in the UK is ---- 

MR. JUSTICE BRIGGS:  Mid-August.

MR. HICKS:  Mid-August, yes.

MR. JUSTICE BRIGGS:  What do you say, Mr. Hacon?

MR. HACON:  That is fine.

MR. JUSTICE BRIGGS:  Mid-August.  It gives you longer to limit it too.

MR. HACON:  Yes.

MR. JUSTICE BRIGGS:  Shall we say disclosure and inspection mid-August?

MR. HICKS:  Yes.

MR. HACON:  Yes.

MR. JUSTICE BRIGGS:  If mid is not good enough, it will have to be – well, 
	I think mid-August is actually a Wednesday, yes, 15th August.  

	Now, witness statement.  They are not going to be desperately sensitive to each other’s disclosure, it seems to me.

MR. HICKS:  No.

MR. JUSTICE BRIGGS:  Not factual witness statements.

MR. HICKS:  No.

MR. JUSTICE BRIGGS:  What about mid-September?

MR. HICKS:  We are going to suggest a slightly later date than that, because what
	I think both sides will want to do is to see how the summer has gone because of course if there is going to be any evidence in relation to that ----

MR. JUSTICE BRIGGS:  I would be inclined to say that that would be more appropriate for supplementary evidence.  Yes?

MR. HACON:  I am sorry, I missed the date that Mr. Hicks put forward.

MR. JUSTICE BRIGGS:  I was looking at mid-September for witness statements.  Mr. Hicks said, “Well, we want to see how the summer goes before we put in our evidence.”   My inclination was you can always put supplementary evidence in if there is something about the summer market that is relevant.

MR. HACON:  I am a little concerned about people being around August and September.  It is always problematic.

MR. JUSTICE BRIGGS:  Shall we say the 24th September?

MR. HACON:  Yes.  That is a Monday.

MR. JUSTICE BRIGGS:  Monday, 24th September.  I like them to be in and looked at before term gets started, it seems to me.

MR. HACON:  Yes.

MR. JUSTICE BRIGGS:  Is anybody going to want to rely on expert evidence?  
	I suppose you are.

MR. HACON:  It is possible.

MR. HICKS:  Possible.  Permission to rely on an expert in the field of public opinion and reputation.    

MR. JUSTICE BRIGGS:  Of what?  Is there nothing in this world which is not susceptible to being “expert” these days”!  I thought you might want a forensic report from an accountant to present in an easy and economical form statistical material which would otherwise take a long time to present.  It is not really expert evidence, but it is often made the subject of a special order.

MR. HICKS:  The kind of expert we had in mind is if either side wanted to do a survey and frequently that is provided by means of an expert.

MR. JUSTICE BRIGGS:  I am not I think minded to encourage it, so what
	I propose to do at the moment is to give liberty to apply for the use of expert evidence provided that the application is made by not later than the end of the first week in October.  Any later than that, we will not get it in in time for the trial.  I think the court would expect to see annexed to any such application at least the gist of the sort of material that was sought to be introduced rather than just something rather vague like “and we think we would still quite like to”.  So liberty to apply for expert evidence provided application listed for hearing  by, let us say, the 8th October, any such application to adduce but not necessarily to disclose to the other side, the evidence sought to be relied on.  The point I am making is that it forces you to go and get it, but you may still say there ought to be an exchange.

MR. HICKS:  Yes.

MR. HACON:  Yes.

MR. JUSTICE BRIGGS:  And, if necessary, the judge can look at it on a brown paper envelope basis.  But this may well be an appropriate case, if you are not sure you need it now, for a sequential exchange.  

	Anything else?  There are Chancery Guide directions for bundles and skeletons.

MR. HICKS:  Yes.

MR. HACON:  Yes.

MR. JUSTICE BRIGGS:  And I think there ought to be an express provision for notification to the court if it appears that the time estimate is no longer valid.  
	I know there is a duty, but it seems to be worth spelling out.

MR. HICKS:  And a direction that we obtain a date.

MR. JUSTICE BRIGGS:  You will attend now to obtain a date.

MR. HICKS:  We can.

MR. JUSTICE BRIGGS:  On the basis I have directed that there be a speedy trial and I say that the window ought at least to close – I do not mind when the Clerk of the Lists opens it – by a week before the end of the Christmas term.  He may want to put it in somewhat earlier than that, to avoid the Christmas rush.  If he wishes to, he can.  Shall we say window to open not earlier than the 12th November?  That gives him reasonable flexibility to fit you in.  

	This is not a particularly heavy case, but you have never been to a Master yet, 
	I take it.  This is the CMC, do you want to reserve or ask to reserve me for case management?  I am not actually sure the case needs any further case management.

MR. HACON:  No, it seems unlikely, but it would certainly be helpful and faster if that happened.

MR. JUSTICE BRIGGS:  I think what I will say is that you are at liberty to ask for a direction that I case manage this one through to through to trial.  I have already got two and sometimes, if any particular judge has too many, it tends to be a bit of a millstone round your neck.  But I suspect that you do not want to wait for a Master’s appointment for anything in this case because of the timetable.

MR. HICKS:  I think it is unlikely.

MR. JUSTICE BRIGGS:  But you have liberty to apply to the judge so as to indicate here and now that you do not have to wait in a queue for a Master on a case management matter.

MR. HICKS:  Yes.  I am grateful for that suggestion, my Lord.  I think that covers everything.

MR. JUSTICE BRIGGS:  Yes.  Thank you for your help.