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Court fixes trial notwithstanding appeal on jurisdiction

31/05/18

In his main judgment in Conversant Wireless v Huawei and others, Carr J held that the English Court had jurisdiction over a patent infringement action in which the Claimant asked the Court to determine the terms of a worldwide FRAND licence (see http://www.brickcourt.co.uk/news/detail/important-jurisdictional-sequel-to-unwired-planet).

The Defendants sought permission to appeal, which Carr J granted. The question then arose as to whether further directions should be given towards trial, pending the appeal. The Defendants contended that under the CPR the Court could not give any such directions while there was an outstanding appeal which went to the Court’s jurisdiction.  

Carr J held, following the earlier authority of Goldman Sachs v Novo Banco, that he had power to give directions notwithstanding any appeal on jurisdiction and proceeded to give directions up to and including fixing the technical and FRAND trials required to dispose of the action. In order to avoid any statutory submission to the jurisdiction under CPR 11.8, however, service of further acknowledgements of service was dispensed with while the appeals were on foot. In addition, the Court’s order recorded that the Defendants did not submit to the jurisdiction by taking any of the steps for which the order provided, and the Claimant was required to undertake that it would not contend otherwise.

Delays in listing in the Court of Appeal have brought this issue in sharp relief in recent times. Following this decision, it cannot be assumed that an appeal against an unsuccessful jurisdiction challenge will result in a stay of the action at any point up to and including the trial itself.

The judgment is here.

Colin West (instructed by EIP Legal) appeared on behalf of the Claimant.