Monday, 16 November 2020

".io" Country Code Domain Names


Jane Lambert

In Welsh Top Level Domain Names  12 April 2019 I described domain names as mnemonics for addresses of resources on the internet.  They contain at least two elements: 

  • a top level domain ("TLD") at the right of the domain name which may be the abbreviation of a country such as ".uk", ".de", "fr" or "it" or a description o the organization such as ".com", ".org" or ".net"; and 
  • a second level domain ("SLD") immediately to the left such as "bbc" or "google".
Often there is a third element immediately to the left of the SLD such as "www" for "worldwide web".  

In the article, I said that TLDs that are specific to a country, group of countries or territory are known as "country code top level domains" or "ccTLD". Those that are not are known as "generic top level domains" or "gTLD". Because country codes are not allocated to political subdivisions, there are a number of geographically specific gTLD for cities and regions.  One well-known example of a domain name for a city is ".london".  Another for a region is ".cat" for Catalonia.  There are two for Wales which are administered by Nominet:  ".cymru" and ".wales."

Country code top level domains are administered by "national network information centres" or "NIC" some of which are controlled by governments.  Most NIC impose very strict nationality or residence qualifications for registrations in their domain space but there are a few that do not.  One of those exceptions is "NIC-IO", the network information centre of the British Indian Ocean Territory. The country code TLD for that territory is ".io".

Since I started to study Welsh systematically in August I have learned that a large number of verbs in that language end in ".io".  It occurred to me that the "io" domain might be popular for Welsh language websites.   I entered a few familiar verbs with the dot separator before the last two letters into the address bar of my browser and found a few examples almost immediately.  The letters "" led me to a website called "Lunch in Cardiff" with a video of landmarks in the city.  Similarly, "" led me to 
"a local bilingual marketplace platform built with coffee, code & toasties over lockdown, in order to provide a better way for you to shop locally with independent food and drink businesses, restaurants, pubs & takeaways."

Other verbs such as "" and "" led me to landing pages that advertised that the sites were for sale or rent.  In the case of "" for the memorable minimum rent of US$100 per month.  Having said that, there were still a lot of obvious names that are still available.   As of this morning, an employment agency might be interested to know that "" has not yet been taken. It was offered to me for US$90. Similarly, ballet teachers might tombé for "" which was available for the same fee.

For some businesses, an ".io" domain might be a good alternative to a ".wales" or a ".cymru" domain name.  However, apart from the somewhat stiff registration fee, there are a number of other matters that prospective registrants might want to bear in mind.  

The British Indian Ocean Territory was created by detaching the Chagos islands from Mauritius and the Des Roches islands from Seychelles before those countries had achieved independence.  The inhabitants of the Chagos islands were then deported to make way for the construction of a military base for US and British forces on Diego Garcia.  Both Mauritius and Seychelles claim the islands and the Chagossians have challenged the legality of their deportation in the English and other courts.  The Mauritian claim has been supported by the UN General Assembly in a resolution calling for the decolonization of the territory which was passed overwhelmingly on 22 May 2019.

Businesses wishing to acquire a ".io" domain can apply directly through the website which is operated by the English company Internet Computer Bureau Ltd.  The company acts as registrar and runs the ".io" whois service.  Applicants are advised to read the company's policies and in particular the Dispute Resolution Policy.  Claims by trade mark owners for the transfer of domain names are resolved by panellists appointed by the WIPO Arbitration and Mediation Centre in accordance with the Uniform Domain Name Dispute Resolution Policy.  That is the same as the procedure for resolving disputes relating to the ".cymru" and ".wales" domains which I mentioned in my previous article. 

This article is the latest of several serendipitous consequences of my learning Welsh.  I am often asked why I am taking the trouble to learn Welsh when I don't live in Wales and cannot claim a millilitre of Welsh blood in my veins.  A question that is asked much more frequently by Welsh people than by English, Scots or Irish. 

The answer is the same as for any language.   It is the key to understanding a culture.  In the case of Welsh, one that has coexisted many centuries with our own but is nevertheless very different and distinct.  The online service provider that has taught me Welsh much more rapidly and efficiently than my school teachers taught me classical and modern languages has already introduced me to animated films, chanteuses and earworms that have delighted me.

Anyone wishing to discuss this article or domain names generally may call me on 020 7404 5252 during office hours or send me a message through my contact form. 

Sunday, 1 November 2020

Two Kinds of Accelerators - Colin Jackson in a Race and Accelerators for Startups

Colin Jackson
Author Ludovic Pern  Licence CC BY-SA 3,o

Last Tuesday, Emily Roberts of M-SParc interviewed the world champion athlete Colin Jackson over Zoom. I joined the Zoom call because it is not every day that one gets a chance to meet a great athlete.  I had also seen Colin Jackson's Welsh Language Journey of 11 June 2020 which was very impressive. As I have also just started to learn Welsh, I hoped to pick up some hints and tips from him.

Colin delivered an inspiring talk.  Emily gave me the best possible if not the most original advice, namely "ymarfer".  It was endorsed by Colin.  He also unexpectedly prompted another question when he mentioned that he had named his academy "Red Shoes."  I was immediately reminded of the fairy tale by Hans Christian Andersen, the Powell and Pressburger film that launched the career of Moira Shearer and the dance drama by Sir Matthew Bourne. Prosaically, Colin said that he had chosen the name because he wore red shoes at his last event before retirement.  I would respectfully invite him to take advantage of the coincidence because dance and athletics have a lot in common.  I think he would find a receptive new market for his services.

Immediately after Colin's interview, we learned of an accelerator programme in North Wales to be delivered by the Excelerator Consortium, a joint venture between The Winning Pitch and Impact Innovation.  Accelerator programmes are officially described as fixed-term, cohort-based programmes, that include mentorship and educational components and culminate in a public pitch event or demo day.  Another way of describing an accelerator is as a cross between The Apprentice and Dragons' Den. Your idea is pinched, pulled and prodded tested to destruction but if it survives you will receive training, mentoring and ultimately funding.

The very first accelerator programme was offered by Y Combinator which, despite the apparently Cambrian definite article, began life, not in Wales but California. The basic idea is set out in About YC:
"In 2005, Y Combinator developed a new model of startup funding. Twice a year they invest a small amount of money in a large number of startups. The startups move to Silicon Valley for 3 months, and the YC partners work closely with each company to get them into the best possible shape and refine their pitch to investors. Each batch culminates in Demo Day, when the startups present their companies to a carefully selected audience of investors. Y Combinator has invested in over 2,000 companies including Airbnb, Dropbox, Stripe, Reddit, Instacart, Docker and Gusto. The combined valuation of YC companies is over $100B."

I would urge everyone who is thinking of launching a new business no matter which part of the world in which he or she lives to browse the Y Accelerator website because it contains a wealth of free information.  In particular, I recommend the Startup School which describes itself as "a free online program and global community of founders."

According to The Guardian journalist, Tina Nielsen, Y Combinator's idea spread across the world quickly (see Nielsen Business accelerators: a financial shot in the arm for startups 24 Oct 2013 The Guardian). The first British accelerator was Seedcamp just 2 years later, NESTA (the National Endowment for Science Technology and the Arts) produced an authoritative report on incubators and accelerators for the Department of Business, Energy and Industrial Strategy and a directory in 2017 which I discussed in Business Incubators and Accelerators Directory 20 April 2020 NIPC News.  I also discussed some of the accelerators near my home in  Accelerators and Incubators in the Leeds City Region 22 April 2017 NIPC Yorkshire and Accelerators and Incubators in the Sheffield City Region 24 Aoruk 2017 NIPC Yorkshire,

In 2018 I got the chance to observe a new healthcare accelerator in Bradford which is 15 miles from my home (see Northern Max - a new Healthcare Accelerator in Bradford 12 Jan 2018 NIPC Yorkshire). At the end of the course, I attended its demo day where I met the course mentors (one of whom was a very old friend) and the cohort (see Bradford Healthcare Accelerator Programme comes to an End 26 March 2020 NIPC News).  You will see from NorthernMAX Demo Day 25 March 2028 NIPC Yorkshire that I was impressed.   Accelerator programmes really do seem to work.

There are now a lot of accelerator programmes in the UK and some are likely to be better than others.  I know very little about the Excelerator Consortium programme as I have only one contact in The Winning Pitch and it is a long time since I last heard from him. But the fact that the  Consortium has connections with the Welsh government, Business Wales, some reputable Cardiff professional services firms, financial institutions and universities are good signs.  The case histories on the Excelerator Consortium website look promising.   The programme is well worth checking out.

Anyone wishing to discuss this article or accelerators and incubators generally is welcome to call me on 020 7404 5252 during office hours or send me message through my contact form.   I wish anyone setting up a business pob lwc.

Monday, 26 October 2020

The New Protected Food Names Scheme as it will apply in Wales

Author Ian Medcalf Licence CC BY-SA 2.0  Source Wikipedia Sheep Farnubf in Wakes

Some food and drink products derive their qualities from the climate, soil or some other attribute of the place in where they are produced or by production methods that have been developed in that place.  Well known examples include champagne, Scotch whisky and Parma ham. Consumers seek out such products because of their place of origin or manner of preparation.  It is therefore in the public interest as well as the interests of those producers that suppliers of competing goods from other regions do not market their goods as goods coming from the same region.

The signs used on products that have a specific geographical origin and possess qualities or a reputation that are due to their origin are known as geographical indications.  They are a type of intellectual asset that the United Kingdom and other parties to the WTO agreement are required to protect by Section 3 of the Agreement on Trade-Related Aspects of Intellectual Property Rights ("TRIPS").  In the United Kingdom, these requirements are satisfied by the law of passing off, the registration of certification and collective marks and sui generis EU intellectual property rights established by Regulation (EU) No 1151/2012 of the European Parliament and of the Council of 21 November 2012 on quality schemes for agricultural products and foodstuffs OJ L 343, 14.12.2012, p. 1–29.
Regulation 1151/2012 establishes a system for the registration of the names of food or drink products in the following categories: protected designations of origin ("PDO"), protected geographical indications ("PGI") and traditional specialities guaranteed ("TSG").  
PDO: The name of an area used as a designation for an agricultural product or a foodstuff,
  • which comes from such an area, place or country,
  • whose quality or properties are significantly or exclusively determined by the geographical environment, including natural and human factors,
  • whose production, processing and preparation take place within the determined geographical area.
Conwy mussels are an example of a PDO.  Goods that are protected by a PDO are sold under a red and gold roundel of ploughed fields and a circle of stars.   

PGI:  The name of an area used as a description of an agricultural product or a foodstuff:
  • which comes from such an area, place or country,
  • which has a specific quality, goodwill or other characteristic property, attributable to its geographical origin,
  • at least one of the stages of production, processing or preparation takes place in the area. 
Traditional Welsh Caerphilly cheese is an example of a PGI.  Goods protected by a PGI are sold under a blue and gold roundel of similar design to that of the PDO.
TSG:  The name of a product that has a "specific character" in that its raw materials, production method or processing are "traditional".  "Specific character" means "characteristic production attributes which distinguish a product clearly from other similar products of the same category."  "Traditional" means "proven usage on the domestic market for a period that allows transmission between generations; this period is to be at least 30 years".   They are not necessarily connected with a particular geographical area.   Traditional Bramley apple pie fillings are an example of a TSG.  Goods protected as TSGs are sold under a blue and gold roundel consisting of stars and the words "Traditional Speciality Guaranteed."
More details of the scheme are provided in the DEFRA Guidance EU protected food names: how to register food or drink products.  
Applications for registration are made to the authorities of a member state to consider whether the product complies with the regulation.  In the UK the relevant authority is the Department for the Environment, Food and Rural Affairs ("DEFRA").   DEFRA  publishes applications to enable third parties to make representations in opposition to the application if they so wish.  If the national authority upholds the application it is forwarded to the Commission for final consideration.  The Commission publishes the application to allow those injecting to the application to oppose it.   In there is no opposition or the opposition fails the application proceeds to registration.   

Member states are required to take administrative and judicial steps to prevent or stop the unlawful use of PDO and PGI  by art 13 (5) of the regulation.  Similarly, TSG are protected against any misuse, imitation or evocation, or against any other practice liable to mislead the consumer by art 24 (1) and member states are required to ensure that sales descriptions used at national level do not give rise to confusion with names that are registered by art 24 (2).  Suppliers of foods or drinks that are protected by the regulation may take proceedings against infringers of their rights may take proceedings in Wales in the High Court or County Court.
The regulation will cease to apply to the UK from 23:00 on 31 Dec 2020.  However, art 54 (2) of the agreement by which the UK withdrew from the EU requires the British government to continue the protection for PDO, PGI and TSG afforded by the regulation under the laws of the UK.  The mechanism by which the UK will implement that obligation is to incorporate the regulation into the laws of the UK with effect from 23:00 on 31 Dec 2020 under s.3 (1) of the European Union (Withdrawal Act) 2018 as modified by  The Agricultural Products, Food and Drink (Amendment) (EU Exit) Regulations 2019 pursuant to s.8 (1) of the Act.

The new British scheme is essentially a continuation of the EU scheme with DEFRA performing the functions formerly carried out by the Commission.   The one big change that the public is likely to notice will be the replacement of the EU roundels for PDO, PGI and TSG with the following British roundels:
Source DEFRA  Licence Open Government Licence

Further information is available from the DEFRA press release of 22 Oct 2020  New rules and logos to protect British food and drinks. its guidance EU protected food names: how to register food or drink products and my article Geographical Indications in the UK after 31 Dec 2020  30 Sept 2020 NIPC Law. Anyone wishing to discuss this topic may call me on 020 7404 5252 during office hours or send me a message through my contact page.

Tuesday, 29 September 2020

Online Pitch Perfect

Photographer Harvey Milligan Licence CC BY-SA 4.0


Jane Lambert

The buccaneering spirit of the ingenious and resourceful young men and women who presented their businesses at Pitch Perfect last night was symbolized by a magnificent sailing boat moored in the Menai Strait.  This was a friendly competition for funding along the lines of the terrestrial Pitch Perfect that I described in A Good Way to spend St David's Day 2 March 2019 and Pitch Perfect Number 2 7 June 2020. Each of the competitors presented his or her pitch in a short video showing the contestant on the deck of the vessel.

As in previous Pitch Perfect events, the contestants were questioned by three judges from the business support sector.  Members of the audience were also invited to ask supplementary questions.  There seemed to be a lot more contributions from the audience than on previous occasions.  That was probably because it was a lot easier to use the Zoom chat channel than slido   The event was chaired very efficiently by Emily Roberts who held each and every one of the contestants to his or her allotted time with grace and humour and still allowed for time for a tea break and one-to-one networking. 

Sadly, I missed a lot of the content, particularly at the beginning of the show.  That was because my internet connection went down several times.  Even when the connection was restored, the sound quality was far from perfect.  The English channel was barely audible and the sound quality of the Welsh channel was only slightly better.  Also, although I have started to learn Welsh there is a limit to how much of a conversation in a new language can be followed after just a few weeks of study.

Consequently, I can't tell you much about the individual entries or winners except that the winner of the cash prize was a very enterprising young woman and the winner of the non-cash prize which included Chamber membership and some professional services was a gentleman called Stephen.  I can name only one judge, Geraint, who (I think) works for the Development Bank of Wales.  There was a wide range of business ideas ranging from therapies to telecoms.  My own favourite was a scheme to market sheep's milk - possibly because I live in the Pennines (formerly part of the Old North) which like the current North of Wales is sheep rearing country.  Someone in the chat channel wrote "I like your logo" in Welsh in the chat channel.  Indeed, several of the contestants received similar comments.

A good logo or brand name can become the most valuable asset of a business and the best way of preserving that asset is to register it as a trade mark.  Although it is probably quicker, safer and more convenient to instruct a trade mark attorney to act for you, it is quite possible for a reasonably intelligent and educated business owner to register a mark without professional intervention.  If you want to instruct a trade mark attorney the best place to start is the website of the Chartered Institute of Trade Mark Attorneys ("CITMA"). A good attorney will make a search, advise you on registrability, draft and file an application that is likely to be accepted and shepherd you pay any objections from the examiner or third parties for just a few hundred pounds.  That fee will usually include searches and the Intellectual Property Office's fees.

The saving if you attempt to apply by yourself is only a few hundred pounds,  If you receive an objection from the examiner or a third party you would lose that cost-saving in a few rounds of correspondence and considerably more still if there were to be a hearing.  The key to a successful application is a thorough search and I gave a presentation on searches last November (see IP Database Searches and Understanding Specifications  30 Nov 2020 NIPC Wales).  You will find a lot of information on the IPO, CTTMA and my NIPC Branding and you can always contact me for a pro bono chat if you get stuck.

I can be contacted on 020 7404 5252 during normal business hours or through my contact form at all other times.

Monday, 14 September 2020

Opportunities for Launching New North Welsh Businesses on 24 Sept 2020

Author Tim Felce (Airwolfhound) Licence CC BY-SA 2.0 Source Wikipedia Anglesey


Jane Lambert

Pitch Perfect is an opportunity for entrepreneurs in Northwest Wales to present their business ideas to a friendly audience and compete for funding contributed by the audience and local investors.  It usually takes place at the Menai Science Park (M-SParc).  I have attended two of those events and wrote about them in A Good Way to spend St David's Day 2 March 2020 IP Northwest and Pitch Perfect No 2 7 June 2019. Another Pitch Perfect is to tale place on 24 Sept 2020 between 17:00 and 19:00 but this one will take place online.   If you want to attend you can register through Eventbrite.

Although I am not sure whether the two events are connected, another online meeting will take place that same day between 09:00 to 10:00 to set up a North Wales Start-Up Club.   In  An Inventors' Club for Northwest Wales? 25 Aug 2020, I wrote about the British Library's Business Club in London:

"The Business and IP Centre explained the need for an inventors' club in an article strap lined "Great ideas can change the world":

'whilst lots of us often spot the potential for a new product or piece of technology, the harsh realities of research and development, prototyping, manufacturing and distribution often mean that few of those ideas actually make it to market.'
Those words apply at least as much to inventors, designers, makers and entrepreneurs in Northwest Wales as they do to London. This is the British Library's solution:
'The Inventors’ Club has been established by the Business & IP Centre to give budding inventors the opportunity to network with others in the same boat, hear from speakers who have successfully commercialised their inventions, stay motivated and share insider hints, tips, expertise and experience. You’ll get feedback on your inventions in a safe, non-judgmental environment and also find out about how the Library’s extensive collection of business and commercial data can help you on your journey from someone with a great idea, to having a product on the market.'
I set up and chaired inventors' clubs in Leeds, Liverpool and Sheffield and supported the ones in Blackburn and Manchester. I can say from experience that they work. In each of those cities, the clubs helped entrepreneurs and inventors to set up new businesses or license the manufacture and sale of their products to other companies."

I added:

"A Northwest Wales inventors' club is not something that can be run from outside. Local people must want it enough to set it up and manage it. If anybody in Northwest Wales is willing to take the initiative I shall place my expertise, experience and connections at his or her disposal."

Although it is called a startup club and not an inventors' club, North Wales Start-Up Club seems to be exactly what I had in mind.   I renewed my offer of help to the West Cheshire and North Wales Chamber of Commerce in a phone call last week.

Now someone like me can't set up and run a local business self-help group remotely but I can and do assist by giving talks, finding speakers and setting up free clinics or one-to-one consultations by phone or Zoom while the pandemic continues or in person afterwards.  

Any entrepreneur, inventor, developer, artist, designer or business owner in Northwest Wales who wants a free consultation on IP or technology law should make an appointment by calling me on 020 7404 5252 during office hours or filling out the following form. 

Fill out my online form.

Saturday, 12 September 2020

Ecosystem2 - Unleashing Potential


Jane Lambert

This is a photo that I took from the car park of a science park.  It was not in Silicon Valley though there are plenty of hills and skies like those in the photo in Northern California.  Nor was it CERN though there are similar views of the Jura. The picture was taken just outside Gaerwen in Northwest Wales where the Menai Science Park or M-SParc is located. Northwest Wales may not have the weather of California or Geneva but it has a good research university, a great arts and innovation centre and the most appealing combination of coastal, mountain and pastoral countryside that I know. 

Last Tuesday, I was one of 32 speakers who participated in M-SParc's Ecosystem2.  This was a 2 hour and 29 minute webinar in which each contributor was allotted 3 minutes to talk about him or herself, his or her business and contribution to M-SParc. There were speakers from the Welsh Government, the North Wales Economic Ambition Board, the local authorities, Bangor University, Menter Môn, Hwb Menter, KTN/InnovateUK, funding agencies, angel networks, clearing banks and professional service providers such as me.  The webinar has been recorded and has been posted to M-SParc's Facebook page.  As you will see from the comments, a lot of people enjoyed it.  I think it is well worth watching.  I have encouraged some of the other organizations I support to consider their own webinars on similar lines.

I enjoyed all the presentations but the one which made me chuckle the most was Andrea Knox's.  Andrea is a commercial solicitor and an insolvency practitioner with premises in the science park as well as Colwyn Bay. In her talk she contrasted orderly liquidation represented by a suave, handsome young fellow with a disorderly one represented by a photo of a particularly dishevelled Mr Boris Johnson.

When it came to my turn I explained what I do for a living and how members of my branch of the legal profession support patent and trade mark attorneys and solicitors in a way that is analogous to the support a specialist surgeon or physician offers a GP in medicine.  We help them by advising on difficult points of law, drafting complex legal instruments for use in business as well as litigation and by representing them in the courts, tribunals and negotiations.  I do two things for M-SParc.  I help to organize and participate in events like Wales's only celebrations of the World Intellectual Property Organization's World Intellectual Property Day in 2019 and 2020, a seminar on patent searching and interpretation which was attended by IP students from Bangor Law School and a workshop on non-disclosure agreements in the light of the new trade secrets directive. I have also held an online workshop with FFIWS  and spoken at another with the Enterprise Hub on understanding IP. I hold regular pro bono IP clinics, the most recent one being on Monday.

I have one remaining ambition for M-SParc and that is to provide local infrastructure for inventors and entrepreneurs.  There are many talented professionals on M-SParc such as Huw Watkins of BIC Innovation and Steve Livingston of IP Tax Solutions but the nearest patent and trade mark attorneys are over 50 miles away.  I envisage a role for the IP graduate students at Bangor Law School in providing basic advice and signposting businesses to patent attorneys and other professionals.  I should also like to see an inventors club with regular talks from angels, bankers,, business advisors, patent and trade mark attorneys, product design engineers, venture capitalists and other professionals.

I delivered 85 seconds of my 3-minute talk in Welsh. It was very basic Welsh because I have not been learning it very long.   I must have made all sorts of grammatical and pronunciation errors although every Welsh speaker who heard me has been sufficiently polite not to point them out to me.  I have been asked whether I shall carry on learning Welsh now that I have given my talk and the answer is yes.  I have already benefited a lot from studying Welsh and I discover something of interest every day.  That is more than enough incentive to learn more.

If anyone wants to discuss this article call me on 020 7404 5252 during office hours or send me a message through my contact form.

Friday, 11 September 2020

Welsh IP Cases: TBD (Owen Holland) Ltd v Simons and Others

Author Ham - Licence CC BY-SA 3.0, Source Wikipedia

Jane Lambert

Court of Appeal (Lords Justices David Richards, Newey and Arnold) TBD (Owen Holland) Ltd v Simons and others [2020] EWCA Civ 1182 (8 Sept 2020)

This copyright and breach of confidence which claim was issued out of the Cardiff District Registry. It was brought by a manufacturer of baggage trolleys, steps and similar equipment for the aviation industry against several of its former employees and the company that they joined.  The litigation started when the claimant discovered that its customers had been canvassed by with promotional materials that reproduced the claimant's photographs and technical documentation.

The claimant applied for a search order against the former employees and their company.   A search order is an order of the court requiring a property owner or occupier to admit a solicitor appointed to represent the court known as "the supervising solicitor", a small number of the opposing party's lawyers and maybe an expert in searching and recording computer memories or some other specialist.  The order usually requires the owner or occupier to allow the search party to look for documents and other evidence that is relevant to the proceedings.  If the searchers find relevant information the order permits the team to photocopy or record it in some other way,

The jurisdiction to make such orders lies ar the very extremity of the High Court's powers.  They are made very sparingly and are not easy to obtain,  A judge has to be persuaded that there is a very acute danger that the evidence will be hidden, removed or destroyed once the person possessing it learns that he or she is being sued or about to be sued.  It is not enough to show that such person is a wrongdoer.  It is necessary to show that he or she is unscrupulous enough to hide, remove or destroy evidence.   For that reason, no warning is given to the property owner or occupier.   In many cases, litigation begins with a search order.

Shortly after the issue of proceedings in the present case, the claimant obtained an injunction requiring its former employees to stop infringing its copyrights, to return any of its property that remained in their possession and to conform on affidavit that they had complied with the order.  The infringing acts continued and the claimant suspected that the defendants had been holding something back.   They applied to Judge Keyser QC for a search order which he granted.  The order was executed and the claimant's suspicions proved to be justified.   Following the execution of the order, the first defendant filed an affidavit confessing that his previous affidavit had been untrue and exhibiting 9 ring binders of documents some of which he had removed from the claimant's premises.  A few weeks later the former employees' company stopped trading and later went into liquidation.

From the point of view of the claimant. this was the high water point of the litigation,   Matters started to go awry when the claimant's solicitors and computer experts started to examine the documents that they had taken away from the defendants' premises most of which they were not entitled to see.  The solicitors also applied for permission to commit the claimant's former employees to prison for interfering with the administration of justice under Part III of CPR Part 81.

Another of the former employees and several other defendants applied for the claim to be struck out on the ground that the claimant's solicitors and experts had breached the terms of the search order by inspecting documents that they were not entitled to see. They also complained that the claimant had used such evidence in an application for permission to bring the committal proceedings.  The application was heard by Mr Justice Marcus Smith who is the Chancery Supervising Judge for Wales.   He heard the application on 28 and 29 Nov 2019 and delivered judgment in TBD (Owen Holland) Ltd v Simons and Others [2020] EWHC 30 (Ch) on 17 Jan 2020.

Mr Jsutice Marcus Smith found that the claimant had breached the search order by inspecting the documents that its solicitors had recovered in the search.  He held that the purpose of the search order was to preserve evidence.  It did not give the claimant any right to rummage through materials that they were not entitled to see.  However, the judge did not think it appropriate to strike out the claim at that time.   Instead, he ordered the recovered material to be handed over to an independent law firm who would weed out any privileged or self-incriminatory material and identify documents relevant to the proceedings at the claimant's expense. He revoked permission that had already been given to institute committal proceedings against one defendant and refused permission to bring such proceedings against another.  He stayed the proceedings and ordered the claimant to give security for the defendants' costs.   I blogged about Mr Justice Marcus Smith's decision in Search Orders - TBD (Owen Holland) Ltd v Simons and Others 22 Jan 2020 NIPCl Law.

The claimant appealed against Mr Justice Marcus Smith's judgment to the Court of Appeal.  The appeal was heard by Lords Justices David Richards, Newey and Arnold on 22-24 July 2020.  They handed down a massive 286 paragraph judgment almost all of which had been written by Lord Justice Arnold.  In his powerful and exhaustive lead judgment, the learned Lord Justice traced the history of the litigation, analysed the search order, reviewed the case law and considered carefully Mr Justice Marcus Smith's judgment.  He held that search orders exist for preserving evidence and nothing else and that the claimant had been wrong to examine the documents that it had seized.  It upheld Mr Justice Marcius Smith's decision with one slight variation. Instead of delivering the documents to independent solicitors, he allowed the defendants' solicitors to carry out the sifting. He did not lift the stay or the requirement to give security for the defendants' costs. He revoked the permission that Judge Keyser had given for committal proceedings. The other Lords Justices delivered short concurring judgments.  I discussed the appeal in The Court of Appeal Revisits Search Orders - TBD (Owen Holland) Ltd v Simons and others 10 Sept 2020 NIPC Law.

Lord Justice Arnold noted that the law on search orders developed when most documents were on paper. Nowadays, they were more likely to be in digital form and kept on a computer, tablet, phone or other device or in the cloud.  For the last decade or so it has been possible for computer experts to make perfect copies of the content on a computer by a technique known as imageing.   Imaging was less intrusive than an old fashioned search order but safeguards were required to protect respondents' privacy and other interests.  He suggested that courts that are asked for a search order for the purpose of imaging should consider whether an imaging order should be made instead.  He called for the Rules Committee to produce a standard form imaging order on the lines of the standard form search orders and freezing injunctions.

As this is an important case I will deliver a talk on it and some of the other issues that Lord Justice Arnold and Mr Justice Marcus Smith discussed in their judgments by Zoom before the end of the month.   Anyone wishing to attend the call or discuss  this article is welcome to call me on +44 (0)20 7404 5252 during office hours or send me a message through my contact form.