Judge Birss :
- This is an application by the defendant (MacDermid) to stay these proceedings in favour of a parallel action proceeding in the United States District Court for the Southern District of Texas, Houston Division before United States District Judge Melinda Harmon. Before me Michelle Menashy instructed by Addleshaw Goddard appears for MacDermid and Michael Hicks, instructed by Gateley, appears for the claimant (Niche).
- The application arises as follows:
- MacDermid and Niche are rivals in the oil business. Niche is based in Lancashire, has about 17 employees and a turnover of £5 million. MacDermid is incorporated in the USA with a turnover of between £24 million to £30 million. Both companies sell hydraulic fluids for use in subsea production control systems. These fluids are used to control the functions of oil and gas wells via remote hydraulic systems at a considerable distance, perhaps as many as tens or even hundreds of kilometres. Once installed the systems have to remain functional for a long time, perhaps in excess of 25 years. These are obviously demanding requirements.
- Niche has a product called Pelagic 100 and MacDermid has a product called Oceanic HW 443. They are directly competitive products. As I understand it the main ingredients of these fluids are water and ethylene glycol but they also contain other ingredients such as lubricant and corrosion inhibitor additives.
- The issue at the heart of this dispute is a new formulation of MacDermid's Oceanic HW 443 fluid. Niche says that Oceanic HW 443 has been supplied for more than 20 years but in 2009/2010 MacDermid changed the formulation of its Oceanic HW 443 product in order to comply with European Regulation No 1907/2007 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals. This regulation is known as "REACh". I will refer to the new formulation as "Oceanic HW 443 v2".
- Niche says that MacDermid was telling customers that it was appropriate to consider that Oceanic HW 443 v2 had the same characteristics as Oceanic HW 443 v1 because none of the chemical or performance properties of the product had been changed. Niche conducted comparative tests of Oceanic HW 443 v1 and v2 in April/May 2012 and produced a report setting out the results.
- The Niche report contends that Oceanic HW 443 v2 is a different product from Oceanic HW 443 v1. It contends that the two products contain different lubricant and corrosion inhibitor additives, have different physical properties and perform differently in various tests. The Niche report contends that Niche considers the major cause of the changes observed was that the corrosion inhibitor has been changed. In Oceanic HW 443 v1 the corrosion inhibitor which Niche believes is present is a tertiary sulphonamide whereas in Oceanic HW 443 v2 Niche believes the corrosion inhibitor is a secondary sulphonamide. Whereas the relevant nitrogen in a tertiary sulphonamide has two alkyl groups and a sulphonyl group connected to it, the relevant nitrogen in a secondary sulphonamide has only one alkyl group in addition to the sulphonyl group bonded to it, and so has a hydrogen atom at its third bond, which, Niche contends, is a chemically active acidic hydrogen, with the potential to undergo further reaction. The original tertiary sulphonamide did not have the same potential. Niche argues that MacDermid has contended that the two corrosion inhibitors have the same chemical formula. Niche accepts that they have the same chemical composition but argues that they have different structures and therefore different chemical properties. The structures are given in the Niche report. The methyl group on the tertiary sulphonamide in the inhibitor believed to be in Oceanic HW 443 v1 is not present on the secondary sulphonamide believed to be in Oceanic HW 443 v2 but an extra methyl group is present elsewhere in the molecule. This would explain why the chemical compositions of the two inhibitors are the same but their chemical structures are distinct.
- Of course even if Niche is right and there are differences in the additives in Oceanic HW 443 v2 as opposed to v1, it by no means follows that there is any material difference in the properties of these fluids. Niche contends the differences exist and they are material. MacDermid has not yet addressed whether it accepts the underlying differences exist at all but in any case, crucially, it does not accept that Oceanic HW 443 v2 has materially different properties from Oceanic HW 443 v1.
- Since MacDermid did not agree with the Niche report, MacDermid issued a rebuttal letter on 18th June 2012. The rebuttal states that MacDermid has "received notification regarding the distribution of misleading information from a specific competitor on Oceanic HW 443 Series v1 verses v2". It states that the chemical specifications and performance of Oceanic HW 443 remain unchanged and that "there has been no change in either the important chemical or the performance properties of Oceanic HW 443, the v2 merely relates to the UK environmental registrations. Further, MacDermid has been producing Oceanic HW 443 under the v2 designation for over two years in the UK and the fluid has been through the rigorous testing at leading subsea OEM's yielding the same performance results as v1, as would be expected".
- Both the Niche report and the MacDermid rebuttal have been sent to customers.
- The disagreement is clear and English solicitors acting for Niche and MacDermid exchanged correspondence between about June and August 2012.
- One of the sub-issues arising is whether the correspondence has a bearing on the fact that MacDermid sued Niche in Texas (on 20th August 2012) four weeks before Niche sued MacDermid in the Patents County Court (PCC) in London. Niche says that when it looked like Niche was going to sue (in England) MacDermid said in correspondence that "time was not of the essence" so that Niche relaxed. Then, in the meantime, MacDermid suddenly started proceedings in Texas. So, says Niche, MacDermid tactically induced Niche to delay filing proceedings in England and its tactics are the only reason the action in Texas started a few weeks before the action here. MacDermid does not accept this characterisation of the correspondence. It says that the last message from Niche terminated the correspondence, using the phrase "see you in court" and so there was no tactically induced delay. This sub-issue is discussed at some length between the parties' US attorneys since it appears to have a bearing as far as US Federal law is concerned in dealing with jurisdiction between US states. In the USA MacDermid contends it could rely on a "first to file" rule as founding jurisdiction whereas Niche contends it could rely on an exception to the "first to file" rule when the first case was filed in anticipation of the second case.
- In any event each has started proceedings against the other which are broadly equivalent, making allowances for the different laws of the USA and the UK. In the UK, Niche sued MacDermid for malicious falsehood, arguing that the MacDermid rebuttal letter is a malicious falsehood. Although MacDermid is a foreign company, no leave to serve the proceedings outside the jurisdiction was needed because MacDermid's trading name is registered as the name of a UK Establishment pursuant to the Overseas Companies Regulations 2009 with an address in Wigan and as conducting the business of the sales and marketing of offshore drilling chemicals. In Texas, MacDermid sued Niche under the Lanham Act (false and misleading advertising). MacDermid argues that the Niche report is false and misleading. In the Texas proceedings MacDermid sued both Niche itself and a US company called Niche LLC of which Niche is a part owner. I will return to Niche LLC below. Although there was a disagreement in Texas about whether Niche was duly served, that point is no longer live. The Texas proceedings are properly on foot.
- At the heart of this dispute is a simple question - whether Oceanic HW 443 v2 is materially different from Oceanic HW 443 v1. If "yes" then Niche are right, if "no" then MacDermid are right. Both torts (malicious falsehood and, so far as I can see from the pleadings, infringement of the Lanham Act) have more to them than this question, such as the issue of malice in the UK, but in truth the centre of gravity of this dispute depends on that relatively simple factual question. To resolve the issue will require expert evidence, will involve a bit of chemistry and no doubt evidence about the performance of hydraulic fluids and their additives, but it is not an unduly complex technical issue. It is the kind of technical question decided in patent cases on a regular basis.
- The UK proceedings also include two further claims by Niche, for copyright infringement and breach of confidence. These allegations relate to certain videos of the tests undertaken by Niche to produce the report. The videos were only available on a private part of Niche's website, accessible only to persons who had been given a username and password by Niche. Niche says that MacDermid (from an IP address in Wigan) downloaded the videos and therefore infringed copyright in them and misused Niche's confidential information. These claims are clearly secondary to the main dispute. It may be that the real motivation for their inclusion is for them to play a part in the parties' jockeying for positions in relation to jurisdiction as between the English court and the Texas court. In my judgment they have peripheral relevance to the questions I have to decide because the real dispute is the one I have described already. I also bear in mind that MacDermid has expressly agreed that Niche could bring those claims as counterclaims in Texas if it wishes to do so.
- Ms Menashy for MacDermid submits I should stay the proceedings before me on two alternative bases: I should either stay the proceedings permanently on the ground of forum non conveniens or else I should stay them pending the outcome in Texas as a matter of case management. Mr Hicks submits I should do neither. I will address the two bases separately.
Forum non-conveniens - the law
- Ms Menashy submitted that special considerations apply where proceedings are already on foot in another jurisdiction and that the governing principles are those set out in the House of Lords decision in The Abidin Daver [1984] 1 AC 398 per Lord Diplock at p411H to p412G. In summary she submitted that what Lord Diplock had held was that where a suit was already pending between the same parties and concerning the same subject matter in a foreign court which is a natural and appropriate forum for the resolution of the dispute between them, then the additional inconvenience and expense of allowing a second parallel action here on the same issues can only be justified if the would-be claimant here can establish objectively by cogent evidence that there is some personal or juridical advantage that would be available to him only in the English courts that is of such importance that it would cause injustice to deprive him of it. The way the argument was developed for MacDermid was that this meant that where, as here, there were already proceedings abroad, all MacDermid has to establish is that the foreign court is "a natural and appropriate forum", and that once that is done, in effect the onus shifts to Niche to establish the "personal or juridical advantage".
- Mr Hicks did not agree with this analysis of the law. He submitted the key authority was the House of Lords decision in Spiliada v Cansulex [1987] AC 460. The basic principle is that a stay will only be granted on the ground of forum non conveniens where the court is satisfied that there is some other available forum which is clearly more appropriate for the trial of the action, [Lord Goff p476C to 78e]. Mr Hicks said that where, as here, the claim has been properly served in the jurisdiction, the court does have power to decline to exercise its jurisdiction and grant a stay on the ground of forum non conveniens, but only on the Spiliada basis.
- Mr Hicks argued that the relationship between The Abidin Daver and Spiliada v Cansulex had been explained by Lord Goff in De Dampierre v De Dampierre [1988] AC 92 to the effect that the existence of the foreign proceedings is a factor to be considered but only that. The same principle (explained in Spiliada) is applicable whether or not there are other relevant proceedings pending in an alternative forum (p107H-108E). The existence of other proceedings may be relevant depending on the circumstances. If they have not passed beyond the stage of initiating process then they may be of no weight at all. Mr Hicks also relied on the judgment of Patten J in Breams Trustees v Upstream Downstream Simulation Services [2004] EWHC 211 which considered all three cases. Patten J explained that the test formulated in Spiliada means that the jurisdiction of the English court can only be displaced if the foreign court is the more natural and appropriate forum. The commencement of an earlier action there does not by itself establish that.
- Ms Menashy relied on the Court of Appeal's judgment in MV Olympic Galaxy [2006] EWCA Civ 528 (Mummery, Buxton, Longmore LJJ) where service of proceedings was set aside on the basis of ongoing proceedings in Sri Lanka on the basis of Lord Diplock's words in The Abidin Daver. I do not think anything said by the Court of Appeal in the MV Olympic Galaxy was intended to or did alter the legal principles set out in Spiliada and explained in De Dampierre. On the facts in the MV Olympic Galaxy, the Court thought that the judge below had not given sufficient weight to the parallel proceedings in Sri Lanka and to the fact that they would continue in any event. Weighing up the factors on that basis, the Court of Appeal decided that service abroad should be set aside.
- I was also referred to the judgment of Arnold J in Innovia v Frito Lay [2012] EWHC 790 (Pat) in which Arnold J reviewed the authorities following on from Spiliada and had to address questions of leave to serve out of the jurisdiction and a stay of patent entitlement proceedings pending the determination of a case in the Eastern District of Texas.
- In my judgment the legal approach applicable to the case before me as regards a stay on forum non conveniens grounds is that I should decline to exercise the court's jurisdiction only if Texas is clearly a more appropriate forum for the trial of the action than England. I should consider carefully the weight to be given to the existence of the proceedings in Texas. This includes considering the stage they have reached and all the circumstances. In effect I am seeking to identify the forum where the claim could most suitably be tried for the interests of the parties and for the ends of justice.
- I reject Ms Menashy's legal submission, which comes down to an argument that just because MacDermid succeeded in issuing its Texas claim four weeks before Niche started proceedings here, (a) the English court is no longer concerned to identify which court is the more appropriate forum and (b) somehow an onus has shifted onto Niche to justify a refusal of a stay.
Forum non conveniens - the factors
- MacDermid contends that Texas is a more appropriate forum for a number of reasons. In summary MacDermid's points are:
i) MacDermid is based in Texas and so too is Niche LLC. So two of the three parties (to the Texan case) are based in Texas. Niche LLC is not a party to the UK proceedings.
ii) Niche LLC played a key role in this dispute because it was Texas-based Niche LLC which sent the Niche report to a Texas-based company called Cobalt and the report was also provided to another Texas based company FMC.
iii) It was at a conference in Houston than the Niche report was brought to MacDermid's attention. Once that happened MacDermid was concerned to limit the damage, as it saw it, to its reputation in the minds of Texas based customers.
iv) MacDermid's relevant witness, Mr Hollinger, is based in Texas as are two relevant Niche LLC employees (Brad Jeter and Mike Mahaney).
v) A further claim in Texas relates to a Powerpoint presentation given to BHP Billiton in Texas.
vi) The expert evidence necessary to decide the underlying technical dispute can be presented in Texas just as easily as anywhere.
vii) MacDermid's causes of action in Texas are governed by US Law, which it is clearly appropriate for the Texas court to deal with.
viii) Niche's claims can be brought as counterclaims in Texas.
ix) Although MacDermid has a registered branch in Wigan, it does not directly own any assets in England and directly employs no-one here. The Wigan site is owned by a different entity - MacDermid Canning Ltd, which owns all the assets at the site and employs all the employees.
x) Thus if judgment was entered in England against MacDermid, it could not be enforced in England.
xi) Whilst some of MacDermid's testing occurred in England, some also occurred in Texas. Whilst Niche's testing of Oceanic HW 443 v2 took place in England, the determination of the key issue will be a matter of expert evidence which can just as easily be done in Texas.
- In the Texas proceedings, the procedural position is as follows. A number of motions have been filed by both sides. A motion by the Niche defendants (Niche and Niche LLC) for a stay or dismissal on forum non conveniens grounds has been filed but not yet determined. A motion by the Niche defendants arguing that MacDermid's Complaint was not sufficiently pleaded was granted in January 2013 and MacDermid filed an Amended Complaint. The Niche defendants say that the Amended Complaint is still not sufficiently pleaded and a further motion on that basis has been filed. MacDermid has applied for an anti-suit injunction to restrain Niche from proceeding with the PCC proceedings. That has not yet been determined. On 6th December 2012 Judge Harmon made a scheduling order setting out the directions for trial. In summary the schedule is:
i) Motions for leave to amend and join new parties by June 3, 2013
ii) Expert's report for plaintiff by November 1, 2013
iii) Expert's report for defendant by December 6, 2013
iv) Discovery complete by February 21, 2014
v) Dispositive motions filed and served by March 21 2014
vi) Non-dispositive motions filed by April 25 2014
vii) Joint pretrial order filed by August 25 2014
viii) Docket call September 5, 2014
ix) Trial for two weeks starting September 8, 2014
- The US trial will be before a jury.
- Niche submits that England is obviously the more appropriate forum and relies on the factors set out below. I have ignored points related to the videos because, as I said above, I believe that dispute is a secondary one. The factors are:
i) Niche is based in England.
ii) MacDermid has substantial operations here.
iii) The Oceanic HW 443 v2 product was for the UK and European market. The v1 product continued to be sold in the USA.
iv) The tests the subject of the Niche report were conducted in the UK.
v) The MacDermid letter to customers of 18th June 2012, which kicked off this dispute from Niche's point of view, is from MacDermid's UK office with a Wigan address, telephone number and VAT number. The letter refers to CEFAS registration "in the UK" and to "the UK's three year environmental registration period" and states "MacDermid has been producing Oceanic HW 443 under the v2 designation for over 2 years in the UK." The letter was sent by MacDermid, inter alia, to persons in the UK.
vi) Niche's relevant witnesses are based in the UK. The chemist who performed the tests is based in the UK and has recently undergone surgery and is currently unable to travel to the USA.
vii) MacDermid has R&D facilities and testing facilities in Wigan. Relevant testing was done in Wigan by MacDermid (although Niche accepts some may also have been conducted in the USA).
viii) A key member of MacDermid's senior management team and the person most likely to have been involved in sanctioning release of Oceanic HW 443 v2 is Mr McManus, who is based in Wigan.
ix) Oceanic HW 443 v2 is supplied in containers which identify MacDermid's UK address.
x) The employees at MacDermid's Wigan site identify themselves as employees of MacDermid.
- As regards the proceedings in Texas, Niche does not disagree with the description of the proceedings I have given above but argues that they have not proceeded very far at all. Niche contends its further motion about the inadequacy of the Amended Complaint is well founded but even if it is not, it can be seen from the documents that a detailed engagement with the issues has not yet taken place in Texas. Niche contrasts this with the somewhat more detailed nature of its Particulars of Claim in the PCC. As regards scheduling, Niche argues that the Texas trial date is likely to go back further, especially if its motion about the Amended Complaint succeeds. In any event a trial in the PCC will come on much sooner than the Texas trial. At present (late Feb 2013), trials in the PCC are being fixed in December 2013.
Assessment (forum non conveniens)
- This is a dispute between two organisations which operate in many places in the world. Each document which the other says contains false and/or misleading statements appears to have been distributed internationally, as one would expect in the oil business.
- It is perfectly obvious that either court is a suitable forum in which to try the underlying factual point at the heart of this dispute: whether Oceanic HW 443 v2 is materially different from Oceanic HW 443 v1.
- Most of the factors are evenly balanced. There will probably be a need to hear witnesses who reside in Texas and witnesses from the UK. In this industry for an individual to travel to either jurisdiction is a commonplace and not a strong factor. Neither is the location of testing facilities. The question of enforcement is not an important factor. The most important relief to either party in this case will be a public declaration as to the underlying factual position about Oceanic HW 443 v2. Also while no doubt Texas is a better place than England in which to try a Lanham Act claim, so England is a better place than Texas to try a malicious falsehood claim. However these arguments about the Lanham Act and malicious falsehood simply provide the local law framework in which the dispute arises, they are not the major aspects of either case.
- The dispute about the BHP Billiton presentation is not a matter of significant weight. MacDermid places considerable reliance on the involvement of Niche LLC as providing a strong basis for Texas as the appropriate court. However it seems to me that this reliance is misplaced. Niche LLC is at best a minor player in this drama. It is a joint venture company between Niche and Trident Deepwater Solutions. The important point is that Niche LLC is simply the conduit by which the Niche report found its way to the USA. Niche LCC did not prepare the report. The real issue remains the truth or falsity of the rival assertions about Oceanic HW 443 v2.
- If the Texas proceedings had been further advanced then that might have been a strong factor in favour of MacDermid but they are not. The Texas proceedings have passed beyond the stage of initiating process but not by a very great extent. I would be wrong to give the Texas proceedings no weight but it is fair to say that the Texas action, like the action here, has really only just started. Moreover insofar as it is relevant to forum non conveniens, this PCC action will come on to trial well before the date scheduled for trial in Texas.
- Each side produced evidence from their US attorneys in which those attorneys expressed their views about what would happen in the Texas proceedings. Each gentleman is of the opinion that his client's applications will succeed and their opponent's will fail. I cannot decide this case by second guessing what will happen in the Texas court and I decline to do so. The management of the case in Texas is a matter for Judge Harmon. I will approach the matters I have to decide now on the basis of the facts as they are today. Today there is an action in Texas scheduled for trial in September 2014.
- I appreciate that MacDermid contends that the proportion of its sales of offshore fluids worldwide dwarfs its sales made in England, but when I step back and look at the reality of this case, what I find is a dispute which arose in England. The dispute has a closer connection to England than to Texas. The changes which led to Oceanic HW 443 v2 came about as a result of European regulations. MacDermid's arguments about the Texas based nature of the oil industry stand in contrast to MacDermid's own rebuttal letter of 18th June 2012. That letter, which was clearly written by MacDermid in response to the Niche report now complained of, is a UK oriented letter. Although later it has suited MacDermid to emphasise connections between this dispute and Texas, when the disagreement first started both sides were focussing on the UK. For the purposes of bringing the claim in the Texas court MacDermid places weight on distribution of the Niche report in the USA. It is entitled to do so but in my judgment it is significant that MacDermid's first response to the Niche report was a letter written from Wigan, referring in its contents to the UK.
- Were it not for the existence of the Texas action, I would have no hesitation in finding that the English court is the most appropriate forum in which to try this case. What concerns me however is that if I refuse the stay sought by MacDermid then there will be two actions running in parallel concerning the same subject matter (unless Niche are successful in their forum non conveniens application in Texas). However it seems to me that on the facts of this case, that is not sufficient to make Texas a more appropriate forum in which this case should be tried. In my judgment the English court is the appropriate court for this dispute and I refuse to decline jurisdiction on forum non conveniens grounds.
Stay on case management grounds
- The stay sought on forum non conveniens grounds would have been a permanent stay but MacDermid also contends that on case management grounds I should stay the case before me pending resolution of the dispute in Texas. On this issue Ms Menashy cited Reichhold Norway v Goldman Sachs [2000] 1 WLR 173 and ET Plus SA v Jean-Paul Welter [2005] EWHC 2115. Mr Hicks did not dispute that the court could exercise its case management powers in this way in a proper case. In ET Plus SA, Gross J stayed an English action in favour of an arbitration in Paris as a matter of case management because to proceed in tandem would be wasteful of costs and whether or not the arbitration would be ultimately decisive, it would at the very least clarify the landscape.
- The principles applicable to a stay of this kind are the familiar case management principles. The overriding objective is to deal with cases justly. This includes saving expense, dealing with cases expeditiously but also fairly, considering proportionality and also the wider administration of justice. In proceedings in the PCC there is a particular focus on proportionality and a cost-benefit analysis. That is because the PCC was established to seek to improve access to justice in intellectual property cases for smaller and medium sized enterprises. Costs are capped and a firm control is maintained over the procedure.
- On this aspect of the application, Ms Menashy relied on the same matters as before. She also placed particular emphasis on the submission that the Texas court was a natural and appropriate forum for this dispute and that if both cases went ahead in parallel, there was a risk of inconsistent judgments on the same topic and there would inevitably be an increase in costs. The costs in the PCC will inevitably be incurred on top of the costs in Texas if the PCC proceedings are not stayed.
- Mr Hicks also relied on the same matters as before. He placed particular emphasis on the fact that the PCC is a specialist tribunal well suited to determining the real issue between the parties. He said it was preferable to have the underlying issue decided by a specialist tribunal which will give reasons for its decision rather than by a jury at a two week trial. He submitted that the costs in the USA will be substantial (there was evidence that Niche's US costs are likely to be about £1.25 Million) whereas the effective case management procedures in this court (or for that matter the High Court) will ensure a London trial at much lower cost.
Assessment (case management)
- The claim in the PCC is a relatively straightforward case which hinges on what looks to me like a fairly straightforward factual question. It is the sort of question the case management machinery in the PCC was designed to deal with. It will not be costly to try in this court and the claim is likely to come to trial in either December 2013 or very early 2014. I would expect the case could be tried well within the usual PCC time frame of one or two days. The outcome will be a reasoned judgment.
- For this purpose Ms Menashy submitted I had to assume that the Texas proceedings would continue. In that case, by the time the Texas action comes to trial, the court there will be able to see for itself the reasons why this court has reached its conclusion. Thus although the court in Texas may reach a different conclusion (subject to any questions of res judicata or issue estoppel), it will be able to do so in the full knowledge of what this court has decided and why.
- I recognise that committing the parties to a trial in the PCC will mean they incur further legal costs on top of the costs in Texas but in this case I do not believe that is a strong point. First the case management here will reduce the costs considerably, second a party here will be able to keep its own costs to a relatively low level if it chooses to and third, some of the costs will not need to be incurred twice, such as the costs of experts. Moreover I bear in mind that Niche is not a large organisation. This is not a point which can be taken too far, after all Niche operates in an international market and has a joint venture (Niche LLC) in Texas, but it is relevant in my view, given the purpose for which the PCC was established.
- Proceeding with both cases in tandem runs a risk of inconsistent judgments but it seems to me that to grant the stay sought by MacDermid on case management grounds risks giving undue weight to the fact that MacDermid launched its Texas claim a few weeks earlier than Niche started its proceedings here. I do not believe that arguing about which case started first in these circumstances and why is a sound basis for deciding this case management issue. Moreover if I stay this claim and as a result Niche feels that it has no practical choice but to raise its malicious falsehood and other claims as counterclaims in Texas, then Niche will in effect have been deprived of the cost-effective case management regime in this court altogether.
- In the end the decisive case management factor in my judgment is timing. If I refuse the stay then the claim in this court will come on to trial in either December 2013 or at the latest very early 2014. If I grant the stay then this claim will not be revived until after September 2014. There would be a case management conference in autumn 2014 and the trial would probably be no earlier than the summer of 2015. The incremental cost of these proceedings over and above the cost of the Texas action is modest. Staying this action in order to seek to save those incremental costs does not justify such an inordinate delay.
- I refuse to stay this action on case management grounds.
The confidential information claim
- Niche's claim includes a claim for misuse of confidential information relating to the videos. As I explained above, it is a secondary aspect of the action and has played no part in my decision. The precise jurisdiction of the PCC in relation to such claims is not straightforward. I considered the matter in Ningbo v Wang [2012] EWPCC 51. Neither side made any submissions about this issue but it will need to be addressed.
Conclusion
- I will refuse the stay sought by MacDermid. At the hearing at which this judgment is handed down, the parties should make submissions about the further management of this case.
- Experience to date in the PCC has shown that it is usually worthwhile taking the opportunity to fix the date for a trial and give other suitable directions whenever a matter first comes before the court, even if, as here, no defence has yet been filed. This has the advantage of ensuring that both sides know where they stand and that the timetable is adhered to. In addition since the likely trial date in the PCC is a factor I have taken into account, I will fix the trial date as part of the directions to be given at the hearing when this judgment is handed down.
