Victor is the victor when it comes to discretion

Who needs legal representation, if you can do the job yourself? We might ask this question in the light of this week's decision of the Court of Appeal for England and Wales in Victor Ifejika v Charles Ifejika and Ifejika Lens Care Ltd [2010] EWCA Civ 563.

This was an appeal by litigant in person Victor Ifejika against the decision of the Patents County Court (Judge Fysh QC) last year to give summary judgment against him. In short, Victor claimed to be the UK registered proprietor of a design for a contact lens cleaning kit. This design originated from drawings produced by Murdoch, a design company. Victor said he had commissioned and paid for the designs in order to make a prototype of a product embodying the registered design. This design was first registered in 1989 in the name of a joint venture (JV) company owned by him and Charles Ifejika. An assignment of the design was subsequently made by the JV company to Victor, who sought an injunction and damages for infringement against Charles.

Charles applied for summary judgment on the basis that, since the original registration of the design by the JV company was invalid, the subsequent assignment of the design to Victor could not be effective as an assignment under the Registered Designs Act 1949, s.19. Charles's application was granted on the basis that the registration was invalid since it was applied for by someone other than the person claiming to be its proprietor.

On appeal, Victor contend said the judge had failed to consider whether the combination of his intention to vest his rights in the JV company, together with the registration of the design in that company's name, operated so as to assign the rights to the JV company in equity, thus giving it title as a proprietor entitled to registration.

The Court of Appeal (Lords Justices Kay, Rix and Patten, allowed the appeal. In the court's view:

* When considering the issue of beneficial ownership, the judge gave no indication whether it was at least arguable that the combination of factors alluded to by Victor could have been effective to create an equitable assignment of the design rights in favour of the JV company which had to be proprietor if it was to exploit it. However, on the evidence, it was seriously arguable that an equitable assignment of the design rights existed and that the company was, after all, its proprietor;

* Even if Charles was right, that would only mean that Victor, as original proprietor, would have remained the legal owner of the design rights and he could have applied in his name anyway.

* This being so, it would be wrong for the court to exercise its discretion under s.20 to order cancellation than a variation of the register.