There are some important observations in the judgment of Mr Justice Henry Carr in Neptune (Europe) Ltd v Devol Kitchens Ltd [2017] EWHC 2172 (Pat) about the need to plead and put a case at trial.  An attempt to introduce a new element of  the case in the closing submissions at trial was robustly rejected.


The claimant brought an action for infringement of design rights in relation to kitchen furniture.  The claimant alleged that a range of kitchen furniture manufactured by the defendant (the “Shaker range”) was copied from its own range of furniture (the “Chichester range”).  There was, however, a very late allegation that another range of the defendant’s furniture (the Classic range”) was copied from the Chichester range.


The judge considered the allegation, made for the first time in the claimant’s closing submissions, that the Classic range was copied from the Chichester ranger.

    1. Neptune’s closing speech alleged, for the first time, that the adjustable rear feet in the Classic range were copied from the Chichester range. Neptune submitted that adjustable rear feet were used in the Chichester range which was “at large” in January 2007, and such feet were first used in the Classic range in June 2007. It was suggested that it was for DeVOL to prove the genesis of that aspect of the Classic range design. It was suggested that the burden was on DeVOL to adduce evidence from whoever came up with the idea of using adjustable rear feet in the Classic design, and it had not done this.
    2. This allegation was not pleaded, nor was it put to any of DeVOL witnesses, including Mr O’Leary, who worked for DeVOL at the time that the Classic range was designed, and gave evidence about it. In my judgment, it is not open to Neptune to raise a new allegation of copying in respect of the Classic range, without pleading the issue and without putting it to those witnesses who gave evidence about the Classic range.
    3. In Lambretta Clothing Co Ltd v Teddy Smith (UK) Ltd [2004] EWCA Civ 886[2005] RPC 6, Jacob LJ said at [65]:
“Where there is an allegation of copying, fairness requires that the claimant should identify the points relied upon well in advance of trial. That should normally be in the pleadings but at least ought to be in the witness statements. As Aldous J observed in N&P Windows v Cego [1989] FSR 56 “I would have thought that it was essential in future cases that points of similarity are set down.””
This is important because, if alleged indications of copying are not identified well in advance of the trial, then a Defendant may be ambushed by such allegations in circumstances where, given the opportunity to investigate, there would be a reasonable explanation.
  1. In the present case, Neptune’s submission goes considerably further than raising an indication of copying for the first time during the trial. It seeks to advance an allegation of copying about a different range of kitchen furniture to that which is the subject of this Claim. The failure to raise the point in advance of the trial, and to put the point to any witness during the trial, means that there was no opportunity for DeVOL to answer this allegation. I have no doubt that DeVOL and its advisers were taken by surprise by this claim in Neptune’s closing, and that to allow it to be introduced at the end of the trial would be unfair.
  2. This unfairness is not answered by reference to the burden of proof. DeVOL was not required to call evidence to prove that features of the Classic range were not copied from the Chichester range, in circumstances where Neptune had never made such an allegation. Once DeVOL had identified the Classic range as the source of the design of the Shaker Range, it was up to Neptune to allege that the Classic range (or some part of it) was a copy of the Chichester Range. It did not do so.
  3. Even if the point were open to Neptune, I would have dismissed it on the basis that Neptune had not advanced any or sufficient evidence to support it. In particular, there was no evidence that DeVOL had had access to the Chichester range in June 2007.”