Change to Allocation Questionnaire.
From this month (April 2008) the allocation questionnaire in use in IP cases in the Chancery Division[1] has been amended to reinforce the alternative dispute resolution message. A copy of the part of the form dealing with this is at the end of this note.
You will see that IP litigators (if they have been completing the form on behalf of their client) are now required to state that they have explained about ADR to their client, as well as the question of a possible cost penalty. In addition, litigants are required to state whether they plan to use ADR, and if not, why not.
Parties are also asked whether they would like the court to arrange a mediation appointment through the National Mediation Helpline although this is likely to be less relevant for IP cases. From enquiries that I have made it is clear that this part of the form is really aimed at those bringing cases in the County Courts and not the High Court. However, I have been told that:
“In principle, there is no reason why [litigants] could not tick the box to ask the court to arrange a mediation, and that a referral could be made to the National Mediation Helpline (NMH), but given that the NMH fee rates are only prescribed for cases valued up to £50k, the fee rates above that would have to be negotiated between the parties and the mediation provider.”
If the NMH route were adopted the mediation procedure provided for by the Civil Court Mediation Service Manual would then come into play. The manual may be consulted at: http://www.judiciary.sut1.co.uk/docs/doc_guid/civil/court_mediation_service_manual_v1_jan2008.pdf
Notwithstanding this difference in the approach likely to be adopted as between the High Court and County Courts, the significance of the change for IP litigators is that the new form is further evidence of the courts’ determination that those advising litigants really do address the possibility of mediation. Any ill-considered response may lead to some awkward questions being asked at the Case Management Conference or, worse still, an uncomfortable costs order at trial.
EXTRACT FROM ALLOCATION QUESTIONNAIRE
Chris Ryan
April 2008
[1] But not, of course, for patent or registered design cases before the Patents Court, where the allocation procedure does not apply.