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No short-cut to passing-off where forgery alleged

By Johanna Gibson, David Pearce, Jeremy Phillips and Ilanah Simon.

A couple of years ago, the IPKat seemed to come across cases involving applications for summary judgment almost every week; these days, however, applications for a knock-out order on the basis that the defendant hasn't a hope of defending the action are not nearly so common. Radiocomms Systems Ltd v Radio Communications Systems Ltd & Tomlinson [2010] EWHC 149 (Ch), a decision of Mr Justice Floyd (Chancery Division, England and Wales, 15 January 2010), is one such case. It's not yet on BAILII -- but the IPKat spotted it on a news round-up from the excellent subscription-based PLC.

In short, Radiocomms Systems Limited (Radiocomms) alleged that Radio Communications Systems Limited (RCS) was passing itself off as Radiocomms through the actions of Mr Tomlinson, who worked for RCS. The alleged passing off consisted of Tomlinson giving Radiocomms' company registration number instead of that of RCS and by saying that company was "Radiocomms from Croydon", the borough in which Radiocomms' head office was situated. Tomlinson denied engaging in the conduct complained of, adding that some of the documents relied on by Radiocomms had been forged.

Rejecting Radiocomms' application for summary judgment, Mr Justice Floyd ruled that some of Radiocomms' evidence was given at second- or third-hand and could take on a different character after cross-examination. Adding that there were other questions regarding the evidence which had to be left for trial, the judge concluded that Radiocomms had not demonstrated that the defence had no realistic prospect of success. What's more, even if the evidence had been sufficiently conclusive, Floyd J would still have ordered a trial because assessment of the claim would involve an enquiry into the veracity of all the witnesses, including Tomlinson himself.

The IPKat notes that, while applications for summary judgment can save a huge amount of time, money and effort, where they are unsuccessful they simply add a further layer of litigation to the dispute resolution process. Curiously enough, they don't seem to have been given much coverage in last month's Review of Civil Litigation Costs (the Jackson Review).

Facts about Croydon here
What's so funny about Croydon here

Full post as published by IPKat on February 10, 2010 (boomark / email).