United Kingdom

Selfless dedication

Fearless advocacy from Lord Grabiner QC in support of an argument on equitable rectification:

Lord Grabiner advances this argument with some force. He says that any other view is heresy and that he is incontrovertibly correct. Indeed he goes as far as to say that he is prepared to go to the stake on this point. One cannot but be impressed by this level of selfless dedication to his client’s cause. I am not sure whether he expects the rest of the Abbott legal team to join him on the pyre, but, a single raised eyebrow from Mr Thorley suggests that he, at least, is not going to volunteer. I hope Lord Grabiner can be persuaded to think again, otherwise it would be the end of what has the signs of being a promising career. In spite of Lord Grabiner’s threat of self immolation, or perhaps encouraged by it, Mr Vos relies on numerous authorities and references in Snell and Spry to show that Lord Grabiner’s view of the law is wrong. He also argues that, even if he were right, there are here so many documents which “cross the line” and support CAT’s case, that it succeeds anyway.

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Citation: Cambridge Antibody Technology v Abbott Biotechnology Ltd [2004] EWHC 2974 (Pat), [106] (Laddie J)

Alice in Wonderland Interpretations

With admirable concision and characteristic literary flair, Lord Atkin describes his reasons for dissent in Liversidge v Anderson [1942] AC 206:

I know of only one authority which might justify the suggested method of construction: “‘When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean, neither more nor less.’ ‘The question is,’ said Alice, ‘whether you can make words mean so many different things.’ ‘The question is,’ said Humpty Dumpty, ‘which is to be master — that’s all.’” (Through the Looking Glass, c vi) After all this long discussion the question is whether the words “If a man has” can mean “If a man thinks he has.” I am of opinion that they cannot, and that the case should be decided accordingly.

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Citation: Liversidge v Anderson [1942] AC 206
Source: Westlaw

The secret of drafting legal documents

How do we interpret a formal commercial agreement if it is ambiguous and we have reason to believe that its draftsman did not have a deep understanding of the relevant law? I think that is what this case is about.

The secret of drafting legal documents was best described by Nicolas Boileau, who was not only a literary critic but a qualified lawyer: “Ce que l’on conçoit bien s’énonce clairement et les mots pour le dire arrivent aisément”. What one conceives well can be stated with clarity and the words to say it come easily. We should all have that framed and displayed on our desks. But too often the opposite precept is followed. Bits of legal boilerplate are bolted together so that it is the words that are allowed to shape the concept instead of the other way round. In that regard the invention of the word processor has worked wonders. Sometimes, I fear, it has dispensed with the ‘concept’ altogether. Misfortune not infrequently follows.

Those who draft intellectual property licences may learn something from the misfortune that has befallen the parties to this case. They have entered into a licence agreement that contains a crucial phrase which is exceedingly hard to interpret. I have changed my mind several times about its meaning – it is a veritable Necker cube of licence agreements. The result is business uncertainty and costly litigation.

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Citation: Oxonica Energy Ltd v Neuftec Ltd [2008] EWHC 2127

A singular merit

Speaking of s 213 of the Copyright, Designs and Patents Act 1988 (UK), Lord Justice Jacob expressed this rather unflattering assessment of legislative drafting and intendment (citations omitted):

It has the merit of being short. It has no other. Jonathan Parker J considerably understated the position, when he said ‘regrettably, the drafting of s 213 leaves much to be desired’ … It is not just a question of drafting (though words and phrases such as ‘commonplace’, ‘dependent’, ‘aspect of shape or configuration of part of an article’ and ‘design field in question’ are full of uncertainty in themselves and pose near impossible factual questions). The problem is deeper: neither the language used nor the context of the legislation give any clear idea what was intended. Time and time again one struggles but fails to ascertain a precise meaning, a meaning which men of business can reasonably use to guide their conduct. The amount of textbook writing and conjecture as to the meaning is a testament to its obscurity. … The absence of any clear policy, as to where the line of compromise was intended to run, means that brightline rules cannot be deduced.

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Citation: Dyson v Qualtex [2006] RPC 31, [14]

An appeal with a hole in the middle

In dismissing Nestlé's appeal against a decision rejecting its application for registration of the shape of its Polo mint as a trade mark, Mummery LJ is alleged to have uttered (though this utterance was not reported):

‘This is an appeal concerning Polos, the mint with the hole in the middle. This is an appeal with a hole in the middle. It is dismissed.’

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Citation: Société des produits Nestlé SA v Mars UK Ltd [2004] EWCA Civ 1008

Coathangers

In R v Chrysler, the accused was alleged to have stolen approximately 40,000 coathangers from various hotels round the world. A plea of justification was entered. But what happens when the witness runs rings around the cross-examiner?

Day One

Counsel: What is your name?

Chrysler: Chrysler. Arnold Chrysler.

Counsel: Is that your own name?

Chrysler: Whose name do you think it is?

Counsel: I am just asking if it is your name.

Chrysler: And I have just told you it is. Why do you doubt it?

Counsel: It is not unknown for people to give a false name in court.

Chrysler: Which court?

Counsel: This court.

Chrysler: What is the name of this court?

Counsel: This is No 5 Court.

Chrysler: No, that is the number of this court. What is the name of this court?

Counsel: It is quite immaterial what the name of this court is!

Chrysler: Then perhaps it is immaterial if Chrysler is really my name.

Counsel: No, not really, you see because…

Judge: Mr Lovelace?

Counsel: Yes, m’lud?

Judge: I think Mr Chrysler is running rings round you already. I would try a new line of attack if I were you.

Counsel: Thank you, m’lud.

Chrysler: And thank you from ME, m’lud. It’s nice to be appreciated.

Judge: Shut up, witness.

Chrysler: Willingly, m’lud. It is a pleasure to be told to shut up by you. For you, I would…

Judge: Shut up, witness. Carry on, Mr Lovelace.

Counsel: Now, Mr Chrysler – for let us assume that that is your name – you are accused of purloining in excess of 40,000 hotel coat hangers.

Chrysler: I am.

Counsel: Can you explain how this came about?

Chrysler: Yes. I had 40,000 coats which I needed to hang up.

Counsel: Is that true?

Chrysler: No.

Counsel: Then why did you say it?

Chrysler: To attempt to throw you off balance.

Counsel: Off balance?

Chrysler: Certainly. As you know, all barristers seek to undermine the confidence of any hostile witness, or defendant. Therefore it must be equally open to the witness, or defendant, to try to shake the confidence of a hostile barrister.  Read more »

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Citation: R v Chrysler [2002]
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