The Application
4.Technically, the Defendant’s application is for strike out of the Claim Form and Amended Particulars of Claim (APoC) under CPR 3.4(2)(a) and/or summary judgment under CPR 24.2(a)(i). However, counsel for the Defendant conceded that the strike out application and the summary judgment application must stand or fall together, and so I need only address the strike out application. Counsel for the Claimant pointed out that the request for summary judgment is not made in the application notice, only in the draft order attached to it, but in light of the approach taken, that issue does not arise.5.6.The evidence before me was contained within the statements of case (each of which has been amended, some several times) and in two witness statements. The Claimant relied on a witness statement of Mr Jonathan Moore, solicitor for the Claimant. The Defendant relied on a witness statement of Ms Rachel Pearse, solicitor for the Defendant. Neither witness was cross-examined as, in reality, their evidence dealt with other applications that were before the Court, not the Defendant’s application to strike out the claim.7.The Defendant also sought to rely on draft Particulars of Claim that were never signed, but were sent from the Claimant’s then legal advisors to the Defendant prior to the action being launched. I do not consider that that document assists me – it may evidence how the Claimant’s then advisors planned to plead the case, but I do not consider that anything more can be gained from that document. 8.9.The Defendant now admits to having copied the eighth iteration of the WaterRower to create its TOPIOM Model 1. Its TOPIOM model 2 was an attempt to work around any rights said to subsist in the WaterRower.10.11.12.The Defendant did not seek to argue that a water resistance rowing machine could never be a work of artistic craftsmanship. Rather, the argument before me was on the question of whether or not the WaterRower is a work of artistic craftsmanship. I will refer to that question during the course of this judgment. Of course, that is not the complete question to be asked on an application for strike out/summary judgment – and I have kept in mind throughout that I am to apply the relevant legal tests, set out below. In reality, I am to ask myself whether the Claimant has “no reasonable grounds” to claim that the WaterRower is a work of artistic craftsmanship and/or that it has no real prospects of success in relation to that claim. 13.The expression “work of artistic craftsmanship” entered the CDPA in 1911 when gender-neutral drafting was largely unknown. I will use the expression in the CDPA.
- David Stone (sitting as Deputy High Court Judge) :
- The Application
- The Law on Strike Out/Summary Judgment
- On the other hand it is not uncommon for an application under Pt 24 to give rise to a short point of law or construction and, if the court is satisfied that it has before it all the evidence necessary for the proper determination of the question and that the parties have had an adequate opportunity to address it in argument, it should grasp the nettle and decide it. The reason is quite simple: if the respondent’s case is bad in law, he will in truth have no real prospect of succeeding on his claim or successfully defending the claim against him, as the case may be. Similarly, if the applicant’s case is bad in law, the sooner that is determined, the better
- However, it is not enough simply to argue that the case should be allowed to go to trial because something may turn up which would have a bearing on the question of construction
- Background
- The Defendant’s Strike Out Case
- United Kingdom Law on Works of Artistic Craftsmanship
- The whole conception of artistic craftsmanship appears to me to be to produce things which are both useful and artistic in the belief that being artistic does not make them any less useful.
- EU Copyright Law
- Declaration
- Conclusion