CIVIL PROCEDURE BACK TO BASICS 44: JUST DON’T WRITE RUDE THINGS : LANGUAGE THAT IS “FAR REMOVED FROM THE PROFESSIONAL COURTESY THAT SOLICITORS ARE EXPECTED TO SHOW EACH OTHER”

Don’t write rude things.  Not even in internal emails or texts. One day it may (and probably will) come back to haunt you.  Read the judgment of HHJ Melissa Clarke in  ATB Sales Ltd v Rich Energy Ltd & Anor [2019] EWHC 1207 (IPEC).  This is one of those cases where I don’t have to add any comment.

I do not believe I should let that pass without comment. I do not consider that there are any circumstances in which one solicitor in the course of his professional duties should accuse another in writing of making imbecilic requests. That language is far removed from the professional courtesy which solicitors are expected to show each other and those they deal with. If a trainee solicitor sent the letter, as the reference suggests, the fact that it was sent in this form suggests a failure by the supervising solicitor properly to supervise.”

 

THE CASE

That claimant was making a claim for copyright infringement.  The judge specifically commented on the defendant’s conduct, and language, in relation to disclosure.

    1. The Defendants provided disclosure, as required by the case management directions of His Honour Judge Hacon, in the form of a scanned copy of the Third Defendant’s £50,000 invoice to Mr Storey dated 31 May 2015, and a number of single-page electronic pdf files contained in folders labelled “2. Sketches of Rich Energy Logo; 3. Rich Energy Can Designs; 4. Stag Logo Research Documents; 5. Brand Research Documents; and 6. Other documents”. The pdf files were numbered, but there were gaps in the sequence. They included the various pages and sketches which I have described above and which were appended to Mr Storey’s and Mr Kelly’s witness statements. Apart from the Invoice and the single scanned page of sketches dated 25/06/2015, none was dated nor was any further description provided of what they were.
    2. The Claimant’s solicitors wrote to the Defendants’ solicitors on 21 August 2018 noting that page markings on pdfs 6-25 indicated that they appeared to come from a single document, albeit with some pages missing, and asking:
i) “Please explain the provenance of those pdfs and supply us with a whole copy of the document or documents from which those pdfs have been extracted”; and
ii) “There is no correspondence passing between the Defendants setting out the scope of the design project, Rich Energy’s/Mr Storey’s own ideas/preferences for design style, presentation of Staxoweb’s design process/ideas or feedback from Mr Storey/Rich Energy on the design ideas that had been supplied to them by Staxoweb. There are also no documents illustrating the iterative process that was followed before the final form of the Logo was selected. Please disclose copies of all such correspondence and/or notes of meetings… falling within the types of documents set out above”.
    1. The Defendants’ solicitors, Brandsmiths, responded on 4 September 2018 stating: (i) that they did not believe that the requests made were appropriate or required any explanation; and (ii) in respect of the second request:
“…this is quite frankly an imbecilic request by you. You are asking our client to provide more documents that could only ever support its case of independent creation”.
    1. I do not believe I should let that pass without comment. I do not consider that there are any circumstances in which one solicitor in the course of his professional duties should accuse another in writing of making imbecilic requests. That language is far removed from the professional courtesy which solicitors are expected to show each other and those they deal with. If a trainee solicitor sent the letter, as the reference suggests, the fact that it was sent in this form suggests a failure by the supervising solicitor properly to supervise.

NOW – WHO IS THE IMBECILE?

intemperate language appears to have been preferred to careful investigation of the case. (Indeed there could – or should – be an evidential assumption that intemperate language means that teh case is not being conducted properly).  The judgment goes on:-

    1. It is also particularly regrettable in the circumstances of this case because of what happened next. The Claimant made a Part 18 Request for Further Information. I note that nowhere in that document does the Claimant mention the words ‘fraud’ or ‘dishonesty’ or even hint at them. It simply made the requests foreshadowed in their solicitor’s letter of 21 August 2018. The Defendants’ solicitors, after a great deal of harrumphing in a cover letter:
“The RFI, quite simply, is an attempt to challenge the authenticity of our clients’ disclosure. It is clear to use [sic] that it is an unsubtle and thinly veiled vehicle to commence the advancement of an extremely serious allegation that our client has fraudulently created documents for the purposes of this litigation in support of its defence. This is not the case and our clients deny any allegation of wrongdoing vehemently. In any event, at no point has an allegation of fraud been alleged or pleaded. The reasonable inference here being that following disclosure your client’s position is becoming increasingly untenable and this is no more than a final ‘roll of the dice’… your scattergun approach of throwing as much mud at our clients in a hope that something sticks is completely inappropriate and heavily criticised by the Courts”
provided what they described as without prejudice and voluntary disclosure, enclosing with the RFI Response:

i) An electronic copy of a document described as “Rich Energy Brand Guidelines” and which is entitled “Brand Research – How we created Rich Energy” (“Brand Document”);

ii) Electronic copies of the renderings underlying pages 19 and 20 of the Brand Document, which include those in Mr Storey’s witness statement and appended to Mr Kelly’s first witness statement, but also include others; and

iii) Screen shots of the properties of each of these electronic documents.

    1. Mr Kelly and Mr Storey signed the RFI Response. It referred to the Brand Document as “a copy of the document from which the pages referred to were taken” and described that the contents were compiled:

i) by Mr Kelly from other documents that had been created by or were in the possession of the Third Defendant before that compilation;

ii) in or around July 2018 and finalised on 3 August 2018.

    1. The RFI Response further stated that:

i) the pencil drawings on pages 6-18 of the Brand Research document were created by Mr Kelly in May and/or June 2015; and

ii) Mr Kelly created the computer-generated renderings on pages 19-22 of the Brand Research document in May and/or June 2015. The properties/metadata of two electronic files containing the renderings on page 19 and 20 (but not 21 and 22) were disclosed, which show that those two files were in fact created on 2 July 2015.

    1. Accordingly, it appeared from the Defendants’ RFI Response that the Brand Document was a 2018-created document compiling together previously existing documents, created by or in the possession of the Third Defendant before the time the Brand Document was put together.
    2. In fact, Mr Kelly’s oral evidence at trial was that the Brand Document was no such thing. In cross-examination, he said that apart from the pencil drawings on pages 6-18 which dated from June 2015, and all of the renderings on pages 19-22 which dated from on or around 2 July 2015, the rest of the Brand Document was:
“produced… to try and aid the court to see, to put together the pieces, because the only originals we had were the original sketches and the black geometric designs, and obviously the can design, but those are the only originals. So just to aid, you know, our recollection of those events, we decided to put together a comparison document, which kind of pieces it together, so that we could talk about it more easily”.
    1. Mr Wyand asked if it was for an aide-memoire, and Mr Kelly said “No, mainly for the court, to make matters easier on the day.”
    2. Mr Kelly confirmed in cross-examination that save for those pencil sketches and renderings, none of the rest of the contents of the Brand Document was in his or the Third Defendant’s possession before he created the Brand Document. He said that:

i) he believed, but was not certain, that the various third party stag head logos used as exemplars or potential “starting points” for the design, including the Example Geometric Stag Designs, came from internet searches carried out by Mr Storey at the time of creation of the Brand Document in 2018, not creation of D1’s Device in 2015;

ii) the photographs, including those contained in the moodboard collage, were found and put together in 2018, not 2015;

iii) the narrative explanatory text and headings were also only created during the course of creation of the Brand Document in 2018; and

iv) the ticks, seemingly showing Mr Storey’s preferred options at various stages, were superimposed on the various images during the creation of the Brand Document in 2018;

v) nonetheless, the Brand Document attempted to “recreate” the “design journey” that he and Mr Storey had undertaken when they independently created D1’s Device.

  1. Mr Wyand asked Mr Kelly why, if the Logo Research page was manufactured for the purposes of this litigation in 2018 using logos selected from internet searches also carried out in 2018, the rubric on that page says “The final row are logos which could be a starting point for Rich Energy’s identity” (my emphasis). Mr Kelly replied: “To effectively portray how we went about coming to the Rich logo, the original concepting and ideas. Again, there was a lot of documentation that we did not keep. There is some that we did, which we submitted to the court, some of it was paper, some of it was electronic. So, most of this document, bar the sketches and the black geometric shapes, we effectively recreated just to tell the story and put it all together”.
  2. My Wyand put to him that someone reading the Brand Document would think that these were the logos from which the development of D1’s Device started. Mr Kelly answered “It was effectively meant to say, this is what we could have done, this is what we did do, here is the whole story, here is how we put it together, and that is making the best use of what originals we had”.
  3. Mr Kelly agreed in cross-examination that the statement in the RFI Response, which he had signed, that “the documents have been created by, or were in the possession of, the third defendant prior to that compilation” was not correct.