In Musion Systems Ltd v Activ8-ed Ltd and others  EWPCC 5, a patent infringement action, Judge Colin Birss QC had to deal with an application to strike out a defence and counterclaim on the basis that the defendants had failed to pay a wasted costs order to the tune of over £45,000 following the previous adjournment of the trial. In short, this was one of those uncomfortable situations in which you can more or less read the court's thought bubbles along the lines of "there's a dodgy and unreliable defendant here who is messing around but we can only operate within the rules -- the more's the pity".
The judge gave the defendants a further seven days in which to pay the wasted costs order, plus a further £9,000 costs in the claimant's application to date. From his judgment one can pick out some useful advice for defendants who want to string the court along and put off the dread day when they are sunk without trace. Thus
- Don't tell the court that you are not available due to “other commitments” without telling the court what those commitments are;
- If you say you can't appear in court because you are ill, it might be worth giving some clue as to what your ailment is;
- Where you decline to appear by telephone "on advice", the court might just be curious as to (i) what the advice is and (ii) whose advice it is -- a doctor's, a lawyer's, a friend's or a telephone engineer's;
- It also helps to let the court know the grounds on which you propose to resist the patent owner's claims, other than saying that you haven't got any money -- and if you don't have money, it's a good idea to give the court some sort of evidence to that effect.