The claimants suspected the defendants of wrongfully using their confidential information. Their staff made an initial investigation. They obtained a search and seizure order; and the material seized was examined by the staff. A Tomlin Order was made, under which an issue between the parties as to the defendants’ liability to the claimants for their staff costs referable to the investigation and examination was referred to a judge.
Held: In general a party’s own employees’ expenses incurred in investigating a claim were not recoverable, but the exception in Nossen was not limited to patents challenges, and could include other intellectual property tort claims. The test was whether if the company had employed an external expert, that expert’s expenses would also have been recoverable, and or where revenue has been lost as a result of the employee being unavailable to carry out revenue producing work.
Stanley Burnton J: ‘Of course, it may be difficult to quantify any loss of revenue or business consequential on the diversion of employee time to dealing with the tort or breach of contract suffered by an employer. It may be that the cost of employee time may be taken as an approximation for the loss of revenue involved; but, if so, the claim remains a claim for loss of revenue rather than a claim for expenditure occasioned by the tort or breach of contract.’
Judges:
Mr Justice Stanley Burnton
Citations:
Times 26-Mar-2002, Gazette 18-Apr-2002, [2002] 1 WLR 2722, [2002] EWHC 233 (Ch), [2002] FSR 59, [2002] CP Rep 37, [2003] 2 All ER 1017, [2003] 1 Costs LR 1
Links:
Jurisdiction:
England and Wales
Citing:
Cited – In re Nossen’s Letter Patent 1969
. .
Cited – Tate and Lyle Distribution v Greater London Council 1982
The defendants were liable to the claimants for having failed to dredge silt which they had caused to be accumulated when constructing new piers for the Woolwich ferry and which had obstructed the claimants’ use of their barge moorings. The result . .
Cited – British Motor Trade Association v Salvadori 1949
The plaintiff was a trade association whose policy was to enforce the fixing of prices of motor cars, at a time when the demand for cars greatly exceeded the supply, so that there were large profits to be made by anyone who could acquire a new car . .
Cited by:
Cited – Carisbrooke Shipping Cv5 v Bird Port Ltd ComC 13-Sep-2005
. .
Cited – Sisu Capital Fund Ltd and others v Tucker and others 28-Oct-2005
The Defendants were accountants who had been sued through their partnership in KPMG. They had been granted a order for their costs. They sought payment for the time they had spent prersonally in preparing their defences.
Held: As professionals . .
Cited – R+V Versicherung Ag v Risk Insurance and Reinsurance Solutions Sa and others ComC 27-Jan-2006
It had held that the defendant insurance intermediaries were liable to the claimants, a German reinsurance company, because of a conspiracy to defraud the claimants on the part of one of the defendants’ employees. The court had to decide issues of . .
Cited – Aerospace Publishing Ltd and Another v Thames Water Utilities Ltd CA 11-Jan-2007
A substantial private archive of valuable books had been damaged when the defendant’s water mains burst. The court was asked to assess the value.
Held: The water company’s appeal failed save to a small extent. The articles were of substantial . .
Cited – Oceanbulk Shipping and Trading Sa v TMT Asia Ltd CA 15-Feb-2010
The parties had settled their disagreement, but now disputed the interpretation of the settlement. The defendant sought to be allowed to give in evidence correspondence leading up to the settlement which had been conducted on a without prejudice . .
Lists of cited by and citing cases may be incomplete.
Intellectual Property, Damages
Updated: 05 June 2022; Ref: scu.168072