Small Claims Track maximum claim amount!

[James9876]

Given the Intellectual Property Enterprise Court Small Claim Track is suppose to "offer a forum with simpler procedures by which the most straightforward intellectual property claims with a low financial value can be decided" I’m struggling to find information on this rather critical point. Given the maximum claim amount is 10k, does this mean that 10k is the maximum damages that can be awarded?

For instance, say you make a claim for 9,500 GBP under UK Enforcement Regulations 3(2)b (fees which would have been due had the defendant obtained a licence) and the court awards this, does this mean that the maximum that can be awarded under 97(2)(a) for flagrancy could only be 500 GBP? What would happen if you also wanted the court to consider additional damages for “unfair profits” or damages for where use on the internet has been unattributed i.e. Right to be identified as author or director Section 78?

I was reading a case detailed in a post on the 1709 blog, where a photographer was awarded 300 GBP for loss of licence fee but the court awarded 500% for flagrancy! That’s fine where the licence fee is relatively low, but what happens when the breach involves multiple images with multiple infringements where the claim under 3(2)b is much higher?

If 10K is the maximum amount for awarded damages under the small claims track, this creates a certain amount of anxiety if the claim is too high under 3(2)b when it's the intention to also ask the court to consider other additional damages. Given that although the claim amount is under 10,000 GBP but the court finds that the overall claim has a potential to be much higher, would the court then decide to move the case to multi track, thus potentially exposing the claimant to covering the cost of the defendant’s legal fees if the result is not in their favour?

[AndyJ]

Hi James,

If you anticipate that the overall amount of any claim is likely to exceed the £10,000 threshold you should ask for your claim to be assigned to the multitrack system, which allows the court to decide which is the most appropriate use of the court's resources. The court (probably in the person of His Honour Judge Hacon) will then look at the complexity of the issues involved and the likely duration of the case, and decide whether the main IPEC or the small claims track is the more suitable forum. But don't forget that the defendant can object if he/she can show that this would be disprortionately costly given the strength of their defence or counter-claim, meaning that he/she anticipates that the likely award of damages will be much lower than you estimate. It's a flexible system but the rules are there to provide guidelines which will be followed in 99% of cases.
So on the basis of your example, if your main claim for damages is £9,500 and you are seeking additional damages for other elements, then it is likely that the IPEC would be the suitable court. However if your claim for damages is £5,000 plus additional damages, there is nothing to stop the small claims court from going over the threshold if the judge felt this was justified by the amount of the additional damages appropriate to the circumstances. Any interest on the amount awarded in damages will be disregarded for the purpose of the threshold.
I would expect that the full picture may only emerge once the defendant has filed his/her Defence in reply to the claim.

[James9876]

Thanks Andy,

So it's the predicted value of the claim even if you are asking the court to decide the value of the additional damages.

So on that basis, would a value of 100% uplift for the additional damages seem like a reasonable expectation even if its possible it could go much higher than this? Obviously it's very hard for me to gauge how the court will decide these values and I can't be too optimistic. The 500% uplift may only apply to lower value sums and maybe the court is more reserved with higher values.

One other question, I've read the IPEC SCT court is open to the public and "a party may obtain a transcript of an oral judgment given in a hearing on payment of a fee" which I assume only applies to the parties involved. Do you know if all there is anyway other than attending the court to find out what the judgement was? Is there anyway to see what cases are scheduled and the names of the parties involved?

[AndyJ]

Hi James,

I can't really assist with the matter of how much any additional damages might be, because it will depend upon the facts in the case (and to a degree, the way in which the claimant's case is presented to the court) and as you are aware I can't provide specific advice on how you conduct your litigation.

It is in theory possible to obtain a copy of the transcript of a trial, but while all hearings are recorded few are ever transcribed unless this is required for an appeal. And not all judgments are given in writing, especially where they are straightforward cases, so the cost can be quite high if a transcription has not previously been made. The lists for the small claims track are not published online so you would need to speak to the listings clerk whose telephone number is in the guidance notes, but there will be a limit to the amount of information he will give out about other cases which have been dealt with or are pending. There is talk of some written judgements from the IPEC small claims court going on Bailii but I don't know the timeframe for this, or whether it has been approved. Judgments of the county courts (which equate to the IPEC) are rarely published and judgments from their small claims courts almost never, so this may be something of a precedent if it happens.