Preiskel & Co’s client Empresa Aérea de Servicios y Facilitación Logística Integral (“EasyFly”), a Colombian airline, succeeded in setting aside an order made to serve proceedings out of the jurisdiction in Colombia in an IP claim brought by easyGroup Ltd, which owns the IP rights employed by the well-known UK-based airline easyJet.
easyGroup sought to bring proceedings in the High Court in London regarding alleged infringements of IP rights and obtained an order to serve proceedings upon EasyFly in Colombia. On 14 January 2020 Mr. Justice Nugee handed down a judgment setting aside the order for service out, holding that easyGroup had breached its duty of “full and frank” disclosure when making the application for service out. A party making a without notice application is required to give “full and frank disclosure” – which means they are required to inform the court in clear terms of issues of fact and law which the other side would make if they were present and represented. It is long-established law that these matters have to be brought clearly to the Court’s attention. It is not enough to put relevant documents in a large exhibit – they should be specifically highlighted by the party making the application. A failure to draw these matters to the Court’s attention can lead to the order being set aside.
In this case easyGroup’s application did not highlight to the Court that EasyFly is a Colombian-based airline which only operates within Colombia and does not operate flights to the UK or to any other EU jurisdiction. Moreover, their application contained a statement that EasyFly was offering services within the EU and the UK. Mr. Justice Nugee considered that this statement may well have mislead the Court into thinking that EasyFly did not dispute offering its services within the UK.
Accordingly, Mr. Justice Nugee set aside the order permitting service of proceedings on EasyFly in Colombia.