Nichols Advanced Vehicle Systems Inc & Ors v Rees, Oliver & Ors

Reference: [1985] RPC 445

Court: Court of Appeal

Judge: O'Connor and Slade LJJ

Date of judgment: 18 Mar 1985

Summary: Copyright - Infringement - Inquiry as to damages - Delay - Post-judgment delay - Limitation period current - Whether possible to stay - Whether inordinate and inexcusable - Whether prejudice suffered

Instructing Solicitors: David Lee & Co for the Plaintiffs; Kingsley, Napley & Co for the Defendants.


The Plaintiffs brought proceedings for breach of copyright in the designs for the ‘Shadows’ Formula 1 car, and were awarded damages, including damages under s.17(3) of the Copyright Act 1956 for the flagrancy of the breach. The Plaintiffs failed to comply with time limits laid down in the order for directions in the enquiry, leading to a delay of three and a half years. The Defendants similarly failed to adhere to the time limits. The Defendants sought to have the action or claim for damages dismissed (for want of prosecution) or alternatively stayed. The Plaintiffs stated that one period of delay was due to a solicitor’s death and the other to their lack of interest in pursuing the inquiry. Falconer J held that, as the delay was not inordinate or inexcusable, and the action to dismiss had been instituted within the limitation period, the inquiry should continue. The Defendants appealed.


Whether the action should be dismissed or stayed.


Dismissing the appeal; the action could not be dismissed as a final judgment had been given. As to a stay, delay in post-judgment proceedings was not governed by the limitation period, and the judge had consequently erred in holding himself unable to stay proceedings. However, the fact that the limitation period was still alive could be considered in determining whether delay was inordinate. The Plaintiffs’ delay had been inordinate and inexcusable, but the Defendants had not suffered prejudice, particularly as they had contributed to the delay. Accordingly the third limb of the requirement in Birkett v James [1978] AC 297 had not been made out.


An interesting decision on the somewhat unusual situation of delay by a successful claimant post-judgment. Former member of 5RB Charles Gray QC (now Mr Justice Gray) appeared for the Defendants.