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Before Lord Bonomy 2004-03-19
Martin Frost & John H Parkes
v
Cintec International Limited
John H Parkes and Martin Frost are in agreement that Martin Frost exits
the above action. A similar situation recently occurred in Frost &
McNamara v Alexander Stone in February 2004 when the Inner House
determined, partly upon 19th century authority, the correct procedure
in partnership or quasi partnership situations.
In Frost v Unity Trust Bank Plc 1997 it was held that a pursuer has an
absolute right to abandon an action and in so doing secure a decree of
dismissal providing the pursuer timeously undertakes to pay the
defender’s expenses. In Frost & McNamara v Alexander Stone 2004 it
was again held that a pursuer had an absolute right to abandon but in
the event that there were two or more pursuers co joined in some manner
then there were added procedural complications. In short, Mr Connal
Q.C. for Alexander Stone, argued upon substantial authority that in the
case that one pursuer wished to continue an action and the other did
not; it was not sufficient that one pursuer merely be deleted from the
instance for the defender has rights against both pursuers and
therefore without securing the defender’s consent (which in F & M v
Alexander Stone the defender was not mindful to grant) the action as
framed fell to be dismissed as the defender could not be expected to
defend against two distinctly different ultimata from effectively a
single sourced body. The Second Division accepted Mr Connal’s argument
but then Lord Gill suggested a solution whereby the existing action of
F & M v Alexander Stone could be preserved. The solution was simply
that Frost assign his rights and obligations to McNamara whereupon
McNamara could sist himself in room and place of Frost, thus the
existing action could be preserved, providing Frost agreed to be
jointly and severally liable for the costs todate. The matter was
adjourned for seven days to the First Division to allow the drafting of
an appropriate assignment between Frost and McNamara. The wording of
the assignation was agreed before the First Division and then
procedurally it was determined that upon the back of the assignation
McNamara was entitled to enrol a motion to be sisted in room and place
of Frost along with a further obligatory motion to amend the pleadings
to reflect his changed status. There then followed a further seven day
adjournment thereafter the First Division allowed McNamara’s motion to
sist in room and place and allowed McNamara’s motion to open up and
amend the pleadings to reflect the changed status.
On Thursday morning (18th March 2004) the defender’s (Cintec’s) agents
Shepherd & Wedderburn were not in a position to confirm whether or
not Cintec consented to the release of Frost. If Cintec consented then
it could be possible for Frost merely to be deleted from the instance.
However, if Cintec did not actively consent it would be necessary to
fully adopt the procedure as laid down by the First Division in Frost
& McNamara v Alexander Stone if the existing action was to be
preserved. It is essential to Mr Parkes that the existing action
be preserved for the action establishes a precedent date or date of
first seizure. (Simply put Cintec upon receipt of the Scottish Summons
raised a High Court English threat action based upon the Patent Acts;
the English High Court sustained jurisdiction; Frost & Parkes
accepted that Cintec had been threatened as per the threats provision
under the Patents Act but lost their defence of justifiability; interim
costs of £90,000 on a standard basis was awarded against Frost
& Parkes; Frost & Parkes lost their motion to leave to appeal
to the Court of Appeal; the English judgment for £90,000 was
registered in Scotland against Frost & Parkes and currently Cintec
has raised in Scotland sequestration proceedings against Frost &
Parkes, in the USA patent proceedings against Parkes, and English
committal proceedings against Frost for Frost’s failure to hand over
security for costs to Cintec. Parkes has secured representation from a
Dr Jim MacDonald and he has again raised the jurisdiction issue with
the English High Court and proposes to take the matter to Europe; Frost
continues to represent himself and currently has referred the English
threats action to Strasbourg for Mr Justice Laddie in his October 2003,
£90,000 costs award to Cintec in Cintec v Parkes & Frost
noted that he, Mr Justice Laddie, did not agree with the statute that
he was obliged to enforce. Since judgment the government has now
enrolled a bill before the U.K. Parliament to abolish the threats
provision in the patents act so as to bring the patents act into
harmony with European and Human Rights law.
Given then the above history and the recent determination by the First
Division Frost proposes his motion, encloses an appropriate assignation
in the form approved by the First Division, and requests that Mr John H
Parkes at the bar is allowed to be sisted in room and place of Frost
and that the pleadings are amended accordingly.
Martin Frost, Edenside, Kelso 2004-03-19
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