Leigh Maxwell Remfry & Anor v GKN Aerospace Services Limited & Anor

The claimants’ case as articulated by Mr Campbell at this hearing is that any reasonable engineer would have known that the FORC would be modified for use in the final AJAX vehicles up to battlefield standard so as to add a dry-break connector, which would put the invention of the Patent into effect.

At the first CMC, Meade J ordered the claimants to amend their particulars of claim (including the particulars of infringement) by 16 August 2023, so as to set out all facts and matters relied upon by them in their allegation of infringement. Those particulars were expressly ordered to include all facts and matters relied upon to support the contention that the FORC will be modified.

Pursuant to that order, the claimants served, among other things, the amended particulars of infringement (APOI) §4(b) of which states that:

The explanation given for this is that the FORC is not compliant with the relevant TRS, since the TRS requires a NATO dry-break connector (§5(b)). §5 of the APOI continues:

The particulars of knowledge for the purposes of s. 60(2) are set out at §29(a)–(l) of the APOI. Those paragraphs plead that the FORC was not fit for battle-field use in the final TRS-compliant version of the AJAX vehicle; that the defendants would have known that; and that it would be straightforward either to adapt the FORC by adding a dry-break connector, or to swap it out of an AJAX vehicle for a replacement PGRC.

The claimants’ position is then further developed in the amended reply and defence to the counterclaim of the first defendant (AR&DCCD1), which maintains at §46(h) that the FORC is an “interim product” and repeats at §46(m)(iii):

The claimants’ pleaded case is therefore the FORC is not the final product which will be installed in the AJAX vehicles, because of the problem of non-compliance of the FORC with the relevant TRS. Rather, the claimants say that it is “likely” that the FORC will be replaced in the final AJAX vehicles by the Red Plug Product. Modification of the FORC to add a dry-break connector is pleaded as an alternative possibility, but is not said to be likely.

Mr Remfry’s witness statement for this application says that:

He goes on to say that the FORC is both simple and cheap to remove and replace, and describes the FORC as “being used as an interim device until such time as it is replaced with an alternative device”. He concludes by asserting that it is obvious to any reasonable person that the fuel system as used in trials on armoured vehicle equipment is “unfit for purpose and needs to be modified”.

Mr Glancy’s evidence refers in considerable detail to the TRS in the AJAX, as provided by the MOD, noting that these requirements incorporate the requirements of certain NATO standard agreements referred to as STANAGs. In particular FT35 of the TRS SV0212, which is the TRS for the AJAX fuelling coupling, requires:

FT35 is designated as a Priority 1 requirement, which Mr Glancy explains means that any deviation from this requirement would require a concession agreement from the MOD. There is no evidence in this case that the MOD has granted any concessions in relation to this requirement.

Mr Glancy’s evidence is that the FORC does not have the technical functions required by (among other things) FT35, because it does not include a dry-break connector. He therefore concludes:

The evidence of Mr Remfry and Mr Glancy is therefore not that the FORC will be modified or is likely to be modified to add a dry-break connector, but rather that either it will be modified to add a dry-break, or it will be replaced with a device containing a dry-break member, or (a further possibility raised by Mr Glancy) a concession will be obtained from the MOD.

At the first CMC in these proceedings on 12 July 2023, Meade J stated that “[i]t must be possible, if it is true, to establish that the FORC is the final thing. It would be an absolute tragedy if this case goes forward and it turns out the FORC is the real final thing.” He suggested that a third party view might “clear the ground”.

In light of those comments, there was correspondence between the solicitors for GKN (Gowling WLG) and the solicitors for GDELS (Jenner & Block), in which Gowling asked for confirmation of the intentions of GDELS and GDUK as regards the modification or replacement of the FORC. In letters dated 7 and 14 November 2023, Jenner confirmed in response that:

On 19 January 2024, Mr Remfry wrote to the MOD referring to the requirements of FT35 of TRS SV 0212, and asserting that the FORC does not comply with STANAGs 3105 and 3756 and therefore “appears not to fulfil the Ministry of Defence’s contractual requirement set out in the TRS”. He contended that STANAGs 3105 and 3756 require a vehicle side dry-break connector for safe operation.

On 3 April 2024 the MOD Safety Authority Secretariat replied to Mr Remfry in the following terms:

Both defendants have offered undertakings not to: (i) modify or have modified a FORC so as to incorporate a dry-break member; (ii) make, dispose of, offer to dispose of, use, import or keep whether for disposal or otherwise a coupling with a dry-break member; (iii) supply or offer to supply a refuelling coupling where they know that is to be used to make a coupling with a dry-break member; and (iv) make, dispose of, offer to dispose of, use, import or keep whether for disposal or otherwise a Red Plug Product.

In light of the way in which the claimants have pleaded their case and the evidence before me, there are, in my judgment, two insuperable problems with the claimants’ case on the intention to modify the FORC.

The first problem is that to establish a s. 60(2) infringement, what must be pleaded is that the defendants knew, or that it would have been obvious to a reasonable person in the circumstances, that the FORC would be modified so as to include a dry-break member. In other words, the inquiry is whether it is probable that the FORC will be modified to include a dry-break member, such that the intention to do so would or should have been known to the defendants. But the claimants do not anywhere plead that it is probable that some ultimate users will intend to modify the FORC to add a dry-break connector.

Quite the opposite: the claimants’ pleaded case, set out most clearly in the AR&DCCD1, is that what is likely is that in the final AJAX vehicles the FORC will be replaced by the Red Plug Product. The corollary of that is that, on the claimants’ pleaded case, the FORC most likely will not be modified to add a dry-break connector.

The claimants cannot avoid that problem by saying that they rely on alternative cases. Even if alternative cases are pleaded, to survive strike out or summary judgment the alternative case on modification must at the very least plead that the FORC will be modified, and must set out (as required by the order of Meade J) the facts and matters relied upon in support of that contention. There is no such pleading, let alone a particularised pleading of that point.

The claimants have attempted to rectify that by the provision, at 2pm today, of a draft re-amended particulars of infringement which does now contain an assertion that the defendants knew, or that it was and will be obvious to the reasonable person in the circumstances, that ultimate users will put the invention into effect by the modification of the FORC to include a dry-break member, and to include a subsidiary displaceable member as claimed by claim 1 of the Patent.

There are multiple problems with that draft amendment. At the outset, it is unacceptably late. The claimants were ordered by Meade J in July 2023 to replead and particularise their case on this point. They did so in August 2023. There is no explanation as to why this attempted repleading is only now being put forward, almost a year later, during the course of the hearing. The draft amendment is, moreover, pure assertion, with no facts and matters pleaded in support. Most importantly, the evidential material before the court is positively inconsistent with the terms of the draft amendment.

That last point reflects and exemplifies the second insuperable problem with the claimants’ case on intention. There is, on the evidence before me, no realistic prospect that the claimants will be able to establish at trial either that the defendants knew, or that it should have been obvious to a reasonable person in the circumstances, that the FORC would be modified so as to include a dry-break member.

Starting with the position of the defendants and their customers, the defendants have offered undertakings not to modify the FORC so as to incorporate a dry-break connector; their customers, GDELS and GDUK have confirmed that they do not intend to modify the FORC to add a dry-break; and the MOD, which is the end customer, has said in terms that it is content that the vehicle is compliant with the requisite standards and that a dry-break is not an explicit STANAG requirement.

Mr Campbell said that the claimants took issue with the content of the MOD letter, which the claimants considered could not be accurate in light of the terms of the relevant TRS for the AJAX vehicles. I do not, however, make any findings as to the interpretation of the TRS requirements and whether the FORC does indeed comply with those requirements. That would plainly be a matter for evidence at trial, if this issue were to go to trial, and the defendants properly do not suggest that this is a matter that I can or should resolve now. Rather, the point is that the MOD has made clear that it regards the FORC as compliant with its requirements for the AJAX programme, and there is no pleaded case, let alone evidence, as to how and why notwithstanding that stated position it is likely that the MOD will modify the FORC or require it to be modified. Nor have the claimants explained who they consider might even be in a position to modify the FORC, given the terms of the defendants’ undertakings and the confirmations provided by GDELS and GDUK.

Turning to what the claimants do say, their pleadings are signed by statements of truth, signed by Mr Remfry. As of 17 October 2023, the date of the AR&DCCD1, therefore, Mr Remfry’s stated belief was that the FORC was likely to be replaced in the AJAX vehicles rather than modified. As set out above, Mr Remfry now contends in his evidence that either the FORC will be modified to include a dry-break, or it will be substituted by the Red Plug Product. That does not, however, assert that modification of the FORC will take place or even is likely to take place. Modification is simply one of two possibilities posited by him.

Mr Glancy’s expert report likewise does not suggest that the FORC will be modified to add a dry-break. His view is, in similar vein to Mr Remfry, that either the FORC will be modified to add a dry-break member, or it will be replaced with a device containing a dry-break, or a concession will be obtained from the MOD. He does not offer any opinion as to which of those possibilities is more likely.

Even taking the claimants’ evidence at its highest, therefore, that evidence does not contend that the FORC will be modified so as to incorporate a dry-break member. It simply contends that modification is one of several possibilities, to resolve what the claimants contend to be the problems with the current design of the FORC.

Again (and as with the pleading problem), that evidential problem is not solved by saying that the claimants advance alternative cases. It is of course entirely conventional for alternative cases to be advanced on the basis of the evidence before the court, where the evidence supports (or purports to support) each of several alternative pleaded cases. In the present case, however, the claimants’ evidence is consistently to the effect that modification is only a possibility. It does not (even at its highest) state that modification is a probability, let alone that the defendants knew or that a reasonable person in the circumstances would know that modification would occur. Nor is there anything in the material before me to indicate that further relevant evidence will or might be available at trial which might establish that modification is probable, as opposed to being simply one of several possibilities.

There is therefore no evidential material which would establish a sufficiently arguable case that the contentions now set out in the draft re-amended particulars of infringement are correct. I therefore refuse permission to amend, and the s. 60(2) claim based on FORC modification must be therefore struck out. Had I not struck out this part of the claim, I would have given summary judgment for the defendants on this issue for the same reasons set out above.

For completeness I note that the defendants advanced two further points (subsidiary to their primary argument as to intention), namely (i) that there was no sufficient pleading as to the claimed subsidiary displaceable member which forms part of claim 1 of the Patent, and no evidential material to establish that a pleaded case on that point would be arguable; and (ii) that the claimants had not pleaded, as required by s. 60(2), that the supply be to a person other than a licensee or other person entitled to work the invention. The draft amendments provided during the course of the hearing addressed both of these points. I do not, however, need to address these points in light of my finding on the intention issue.

The remaining issue is the licence issue. This is a short point. The second claimant was struck off the register of companies on 25 May 2021 and restored to the register on 13 January 2023. At §§13–14 of the amended particulars of claim, the claimants plead that on 20 May 2021 Mr Remfry terminated the second claimant’s exclusive licence, but that in light of the company’s restoration to the register the second claimant was “entitled at all material times” to an exclusive licence under the Patent, whether in writing or not, and that that “unwritten exclusive licence” was formalised by written agreement between the two claimants, executed on 13 February 2023.

The termination of the second claimant’s licence was confirmed at the time by the claimants’ then patent agents on 27 May 2021, in a letter to GKN saying that “all PGRC IP rights belong to Mr Remfry. They were licensed to PGRC-DSL. This licence is being terminated, please see attachments.”

Mr Remfry, in his first witness statement dated 28 April 2023 explained the reasons for terminating the second claimant’s licence, saying:

The defendants’ reply and counterclaim took issue with the claimants’ pleaded case on this point, denying that any “entitlement” arose by virtue of the restoration of the second claimant to the register, and saying that the claim that the unwritten exclusive licence was then “formalised” was not understood. The amended reply and defence to the counterclaim of the first defendant made no response to these points.

The claimants’ case is now, as Mr Campbell clarified, not that any unwritten licence arose automatically by virtue of the restoration of the second claimant to the register, but rather that there was an oral unwritten licence granted by Mr Remfry immediately following the termination of the written licence, and that the oral licence then subsisted and remained in effect following the restoration of the second claimant to the register. It was that oral licence which was, according to the claimants, formalised by the 13 February 2023 written agreement.

In support of this new case, the third witness statement of Mr Remfry states that he granted the second claimant “an unwritten exclusive licence immediately following the termination of the written licence. That unwritten licence was then formalised by a new written licence.”

The problem with this assertion is that it is not pleaded. Nothing in the current version of the amended particulars of claim comes close to alleging that following termination of the written licence Mr Remfry granted the second claimant an unwritten oral licence. The claimants would therefore have to amend to plead the point. Mr Campbell said that they could do so. No draft amendment was provided, however, even during the course of the hearing. That is a distinctly unpromising start to any application to amend to address this point.

More importantly, in light of the material before the court, any application to amend would be completely hopeless. Until Mr Remfry’s assertion in his third witness statement, there was nothing whatsoever to suggest that an unwritten licence had been granted immediately following termination of the written licence. On the contrary, the amended particulars of claim pleaded that the second claimant’s licence had been terminated, and Mr Remfry’s first witness statement explained why it was necessary to terminate that written licence, so as not to have a licence subsisting when the second claimant was struck off the register. The explanation given in that first witness statement is squarely inconsistent with the contention that Mr Remfry now makes in his third witness statement.

Moreover, Mr Remfry’s new claim is impossible to reconcile with the fact that seven days after the written licence was terminated his patent agents, presumably on his instructions, wrote to GKN saying in unambiguous terms that the rights to the Patent belonged exclusively to Mr Remfry, and that he was terminating the licence to the second claimant.

In light of that evidence, Mr Remfry’s belated claim to have granted an unwritten exclusive licence to the second claimant is wholly implausible. It is a bare assertion with no details whatsoever of when the supposed licence was granted, how it was granted, and why it was never mentioned before on the numerous occasions where the matter has been dealt with, whether in the pleadings or the evidence. Moreover, the other evidence before the court not only fails to support this new claim but positively contradicts it – and importantly, that evidence emanates not from the defendants but from the claimants themselves. There is, therefore, no material before the court to establish a sufficiently arguable case that the allegation now made by Mr Remfry is correct.

Nor is there anything to provide reasonable grounds to believe that a fuller investigation at trial would provide further evidence that might alter that conclusion. If Mr Remfry had, indeed, granted the oral licence that he now claims to have granted, he could have explained that fully in both his first and his third witness statements. There is no explanation as to why he has not done so; nor any indication of any further relevant evidence which might be available if this point were permitted to go to trial.

The second claimant’s claim will therefore be struck out in respect of the period between 20 May 2021 and 13 February 2023. Again, as with the FORC modification issue, if I had not struck out this aspect of the claim I would have granted summary judgment in favour of the defendants on this issue, for the same reasons as given above.

The defendants’ strike out application succeeds both in respect of the FORC modification issue and in respect of the licence issue.