Eardley: Abusive relitigation
A businessman who sued his opponent’s solicitors over its conduct of trade mark proceedings has seen his claim struck out, with the judge describing it as “always bound to fail”.
Mr Justice Eardley said Lewis Silkin and a solicitor, a paralegal, and two trade mark attorneys at the firm had applied for a civil restraint order against Raj Pal Senna, which should be listed.
The barrister instructed by Lewis Silkin to act in the original proceedings had also applied for a restraint order, due to be heard a few days after the handing down of Eardley J’s judgment.
Certifying the claim as totally without merit, Eardley J went on: “Despite the energy devoted by the claimant to finding a viable formulation, this claim was always bound to fail and there were no reasonable arguments available to him to persuade the court that it should proceed.”
Lewis Silkin acted for Japanese company Hoya Corporation in successfully opposing the application by a company called Photo-Image to register two camera trade marks. Mr Senna represented Photo-Image in the proceedings, even after he ceased to be a director.
The UK Intellectual Property Office (IPO) found that the application fell short of acceptable standards of commercial behaviour and amounted to bad faith. It awarded Hoya off-scale costs because of how Mr Senna had conducted the proceedings.
Eardley J said that, instead of appealing, he brought three sets of proceedings. There was a judicial review of the IPO decision and a claim against Hoya’s counsel. The latter has already been struck out.
This claim sought damages of at least £375,000 for “psychiatric harm, distress, reputational harm, loss of his directorship at Photo-Image and economic loss in the form of damage to his camera repair and service business as well as money spent mitigating the harm caused by the defendants’ actions”.
Lewis Silkin argued that the claim “even as reformulated, is an abuse of process and fails to disclose any case with a realistic prospect of success”.
The law firm applied for a “terminating ruling”, while Mr Senna cross-applied for permission to amend his particulars of claim.
While the original particulars alleged that the outcome of the IPO proceedings had been obtained dishonestly, Mr Senna wanted to refocus them on Lewis Silkin’s deployment of the fact of his conviction in 1998 for an undisclosed offence that led to a “substantial” jail term.
The firm had also cited his lengthy history of civil litigation – at the time that he was the subject of an extended civil restraint order.
During the course of the IPO proceedings, Lewis Silkin withdrew its reliance on the conviction and filed a redacted version of a witness statement from one of its solicitors omitting the reference to the conviction and other aspects of Mr Senna’s litigation history.
Though the conviction was spent when Lewis Silkin obtained the information about it, Eardley J said the immunity from suit that prohibits claims based on statements made in the course of, or in preparation for, legal proceedings as a “complete answer to this claim”.
He also rejected the contention that the Rehabilitation of Offenders Act 1974 created a private law right of action against those who obtained, disclosed or mentioned a person’s spent conviction.
Eardley J concluded: “Some aspects of the proposed amended claim involve abusive relitigation; almost all of it is precluded by the immunity rule; and the small parts of it that are not have no realistic prospect of success.”
He refused Mr Senna, who represented himself, permission to amend and struck out the whole claim.
“This is already the claimant’s third set of draft amendments. There is nothing to suggest that he could cure the fundamental defects I have identified through further redrafting.”
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