IP Cases & Articles

Joint tortfeasor? Birlea Furniture v Platinum Enterprises

Before the English Intellectual Property Enterprise Court (IPEC), it seems to be increasingly common to allege that directors of an alleged infringer are joint tortfeasors. In Birlea Furniture v Platinum Enterprises, Her Honour Judge Clarke has revisited the jurisprudence on this. Owners of intellectual property should give careful consideration to it before alleging such joint tortfeasance.

The leading authority is the Supreme Court’s Decision in Fish & Fish v Sea Shepherd, which is summarised as follows:

In order to be liable with a principal tortfeasor a defendant had to be proved to have combined with the principal tortfeasor to do, or to secure the doing of, acts which constituted the tort; that that required proof that the defendant had acted in a way which furthered the commission of the tort by the principal tortfeasor and that he had done so in pursuance of a common design to do, or to secure the doing of, the acts which constituted the tort; and that whether the matters relied on by a claimant had any significance to the commission of the tort would depend on the circumstances in each case.

This has been applied by the His Honour Judge Hacon in Vertical Leisure v Poleplus as follows:

I interpret this to mean that in order to fix an alleged joint tortfeasor with liability, it must be shown both that he actively co-operated to bring about the act of the primary tortfeasor and also that he intended that his co-operation would help to bring about that act (the act found to be tortious). Liability will always be subject to the threshold requirement that the alleged joint tortfeasor's contribution to the act was more than de minimis.

For companies with only one employee, this may be a relatively easy threshold to meet. However, for larger companies, without specific evidence, this may be more problematic.

In the case at hand, the court concluded that the director was a joint tortfeasor.

Case details at a glance

Jurisdiction: England & Wales

Decision level: Intellectual Property Enterprise Court - Community Trade Mark Court


Citation: [2018] EWHC 26 (IPEC)

Date: 11 January 2018

Link to full (bailii) decision): www.bailii.org

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