In the recent judgment given by Master Clark in Easygroup Limited v ER Travel Services Limited and Others [[2023] EWHC 1195 (Ch)] the Master chose to include the issues arising out of allegations that some of the defendants are liable as joint tortfeasors in the trial of liability rather than leave them to be determined in the trial of quantum.
Easygroup owns many trade marks with the easy prefix (including easyjet). The Defendants trade under the brands "Easirent" and "Easirentvans". Easygroup brought a claim for trade mark infringement and passing off and included claims of joint liability of several of the defendants for the infringing acts of other defendants. The Master was asked to rule on whether the joint liability issues should be dealt with as part of the trial on liability or held over for the trial on quantum. In a trade mark infringement case there is a trial to establish liability and if liability is established then there would be a second trial to establish the quantum of damages. Easygroup wanted the issue of joint liability to be dealt with at the liability stage, while the defendants wanted it to be held over for the quantum stage.
The Master considered a number of factors but came down to balancing cost saving on one hand against the possible negative impact on possible settlement on the other. It was common ground between the parties that very few IP cases proceed to a trial of quantum. If a claimant succeeds on primary liability then the parties usually settle the matter before a trial of quantum is required. The Master was conscious that trying the joint liability issues at the liability trial will enhance the chance of settlement as it will reduce the number of issues on which the parties would need to reach agreement in the settlement negotiations. This benefit outweighed the additional costs of dealing with the issue at the liability stage. The Master did not consider the additional costs in this case to be significant.
The Master made it clear that the decision as to when to hear the joint liability case was a discretionary case management decision and that in other circumstances, when the level of cost saving was significant for example, then it may be appropriate for such issues to be held over to the quantum trial.
Taking into account the factors set out above, I conclude that trying the joint liability issues at the liability stage will enhance settlement by reducing the issues between the parties, and that this benefit is not outweighed by the additional costs of doing so, which costs may well be incurred in any event at the quantum stage. I therefore decline to direct that the joint liability issues be determined at the quantum stage.
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