Canady v Elektromedizin GmbH & Ors

LORD JUSTICE JACOB: These are the bare facts material to this application. The claimant, Dr Jerome Canady, sued four defendants for infringement of his European patent UK 0595967. On 25 July 2005, Pumfrey J ordered a separate trial of the issue of infringement. He went on to hear that and, by a judgment of 21 December 2005, [2005] EWHC 2946 (Pat), held there was no infringement. He dismissed the action, granted a declaration of non-infringement and ordered the claimant to pay the costs of the actions. He also granted permission to appeal and gave the defendants liberty to apply for a payment on account of costs.

A notice of appeal was served on 13 January 2006. The defendants applied for an interim order as to costs and by an order of 10 February 2006, Pumfrey J ordered a payment of £130,329.69 to the first and second defendants and a payment of £108,850 to the third and fourth defendants. Each was on account of costs and each was payable in instalments, and each subject to an undertaking to repay should the appeal succeed.

Up until that point, Dr Canady was represented by solicitors and counsel, but on 5 April 2006, his solicitors came off the record. The time for paying all the instalments of the interim payments has now passed, without any explanation as to why no payment has been made; this is despite two requests in writing for an explanation. Dr Canady has not communicated at all with either of the respondents, but he sent an email on 19 May to the Appeals Office. He said that he would represent himself on the appeal, and gave an email address and an address in the United States, which I am told is his business address. It is not the same physical address that was given previously. Dr Canady has not given an address within the United Kingdom for service, as required by the rules.

We have before us applications by the first and second, and third and fourth defendants. Each pair seek an order that the appeal be struck out, either now, or if the interim orders costs are not paid, within 21 days. There seems to be no doubt that he has been served with these applications, at least he has been served with these applications at the addresses he gave to the Appeals Office. There is equally no doubt that the court has jurisdiction to make the orders sought; see Hammond Suddard Solicitors v Agrichem International Holdings Ltd[2001] EWCA Civ 2065, where the relevant rules are discussed and it is held that there is a jurisdiction.

To succeed, the respondent must show a compelling case. I have no doubt that a compelling case is made out here. Dr Canady seems to have the money. He has a business, I understand, and indeed he is conducting other litigation, both in this country and elsewhere. He has made no communication of any kind with the respondents; he has not given a proper address for service. He has not explained in any way why he has not paid the money ordered by Pumfrey J to be paid.

In those circumstances, it seems to me clear that this appeal should be struck out and it should be struck out now.

SIR PETER GIBSON: I agree.