Case No: A3/2009/2000
Neutral Citation Number: [2009] EWCA Civ 1511
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CHANCERY DIVISION
PATENTS COURT
(HIS HONOUR JUDGE FYSH QC)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday, 26th November 2009

Before:

LORD JUSTICE CARNWATH

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Between:

	WALKER 	
Appellant	
	- and -		
	
DAXBOURNE INT LTD	

Respondent	

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(DAR Transcript of 
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No:  020 7404 1400  Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

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Mr C Birss (instructed by McDermott Will and Emery LLP) appeared on behalf of the Appellant.
Mr M Hicks (instructed by Red Solicitors LLP) appeared on behalf of the Respondent.

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Judgment
Lord Justice Carnwath:

1.	This is a renewed application for permission to appeal from HHJ Fysh sitting in the Patents Court.  The issue concerned alleged infringements of the patent of a so-called hair-piece, the distinctive feature being its butterfly clip. 

2.	I do not need to go into the details because the issue with which I am concerned was a very narrow issue of fact relating to whether there had been prior disclosure before the priority date.  This all turned on whether the proposed appellant, Miss Walker, had disclosed this butterfly clip at a restaurant to a Mr Smiley in September 1992.  If she had indeed done that publicly, then it is common ground that it would have been fatal to her case, at least so far as the claims other than claim 4 are concerned.  If on the other hand she had done it either at a restaurant after the priority date, or alternatively before the priority date but not in a restaurant, then apparently that would not have mattered.

3.	This may seem a somewhat fine distinction, particularly when one is looking at an event which allegedly took place now 17 years ago.  Nonetheless it is on that that this case has turned.  The particular significance of it was that Mr Smiley, who was a person who was alleged to have been at this restaurant meeting, also acted as the expert for Miss Walker in the present trial and was found by the judge to be a wholly suitable witness.  Indeed, he said in paragraph 39 that Mr Smiley could scarcely have had better credentials to be an expert in this case and he was “well informed and articulate”.

4.	However, the judge said this at paragraph 40, and this is the key point on which Mr Birss relies.  He said that he would have paid great attention to Mr Smiley save for this: 

“…that his standing was to my mind systematically poisoned by the false evidence which he (and Miss Walker) have by their own admission given in court.  They now say apropos their depositions that they gave untruthful evidence under oath to the court in Florida regarding what took place in the London Steak House.  They also say that the evidence which they have now given about the same incident is the true version.”

5.	Now, just to step back a moment, the US proceedings were patent proceedings in the US district court for the Southern District of Florida involving the US equivalent patent, the plaintiff there being an American company called General Wig Manufacturers. Mr Smiley gave evidence there under deposition. He was asked there when he had first become aware of this device, and he referred back to an event which he identified as being in 1992 and he did indeed talk about it as having been at a restaurant.  As the judge quoted:

 “I absolutely remember that.  I remember the restaurant.  I remember the name of the restaurant.  I remember where it was.  I remember what we had for dinner.  That to me was a very memorable night.”

The judge referred to that extract as illustrating “the flavour of his evidence”.  

6.	In the American proceedings it did not matter whether this disclosure had taken place at a restaurant or anywhere else.  What was significant there was when Mr Smiley first became aware of it.  In the English proceedings that did matter and was indeed crucial, as I have explained. When Mr Smiley and Miss Walker came to give evidence here they said that what they had said in the American proceedings had been a mistake, that on reflection they realised that there had been a restaurant incident but it had come later and the incident in 1992 was actually in private.  They say that that is also consistent with the only written corroboration of either event, which is a note from Miss Walker to Mr Smiley talking about a memorable event but not in terms identified as having been at a restaurant.  

7.	Now, normally one would simply treat this as a question of fact on which the judge was entitled to form his own view and that is the basis upon which Jacob LJ refused permission.  However, Mr Birss says that this is not a normal case, because it was not simply a question of disagreeing with a view, it was actually going further and saying in effect that the witnesses had admitted to lying in a way which “poisoned” all their evidence.  One can see the relevance of this also when one comes onto the other hurdle that faces the appeal, which is in relation to obviousness. Tthere the judge made a fairly clear finding against Miss Walker, and in relation to Mr Smiley’s evidence said that for the reasons already given he had treated it with caution. That , I think, is a reference back to the “admission”.

8.	Mr Birss says that what the judge was in effect saying was that these people admitted lying to the foreign court and have come here with a concocted story whereas in fact the true story is that given in Florida.   
9.	I am left with an uneasy feeling that the judge has overstated the degree of falsehood involved.  Bearing in mind that in the American proceedings this issue was simply not material, and that these events happened 15 years ago at the time of the trial, it seems to me arguably going too far to say that this has poisoned the whole of the evidence because of an admission of falsehood.  
10.	The judge also  refers to a note of Mr Smiley’s cross examination where he says “I agree that most of my deposition is wrong”. When one looks at that in context one sees that, having said that in relation to the particular question which related to the form of the clip, he said he would like to explain it further. He then gave an explanation about the circumstances of the evidence being given at a time of considerable stress for him, having left a particular company and not having been involved in this field and being subjected to six hours of questioning. So there is an explanation which is consistent with it not being a deliberate falsehood, but in fact reprehensible but understandable, and certainly not something which necessarily ruled out looking at the matter in more detail when the issue became of real significance as it did in the present case.

11.	It is fair to say that there are a number of other matters which the judge refers to including the demeanour of the witness and so on. However, having heard both sides, and having taken rather longer than is normal with an application of this type, I am not satisfied that it would be right to rule out the appeal at the permission stage.  I think there is enough to make it at least realistically arguable.  Although I hold out no hope as to the ultimate results, I am going to grant permission.

Order: Application granted