Justice for Jing
Image by Mae Yu on Unsplash

Virtuoso Legal obtains indemnity costs award and interim payment in excess of £100,000 for Jing Lu in defending expedited High Court breach of confidence case by FreshAsia Foods

On 9 January 2019, we updated our readers on a matter where the Virtuoso Legal IP Protect team, successfully defended an interim injunction application brought by FreshAsia Foods Limited (“FreshAsia”) seeking to (amongst other things) force our client, Jing Lu, to terminate his employment with his new employer. For more information about that, read here.

FreshAsia, were one of the leading suppliers of dumplings into the UK market. FreshAsia were represented by Myerson Solicitors, based in Altrincham, and leading IP barrister, Douglas Campbell QC.

Jing Lu was represented by Virtuoso Legal’s intellectual property litigation team, led by Philip Partington (and including Lakmal Walawage and Razvan Popa), along with Stephanie Thompson of Serle Court, who provided exquisite advocacy before the court.

On 20 March 2019, we further updated our readers on this matter because we had obtained the judgment of Mr Justice Arnold and had successfully defended Jing Lu at trial.  A full copy of his decision can be found here and please do read our earlier blog here.

On 30 April 2019, following a contested hearing in relation to the issue of costs, Mr Justice Arnold ordered that FreshAsia pay Jing Lu’s costs, mainly on the indemnity basis, and that an interim payment of a sum in excess of £100,000 be paid within 14 days.

It is understood that FreshAsia had estimated to incur in excess of £180,000 in legal costs in unsuccessfully bringing these proceedings.

The Costs Hearing, 30th of April 2019

Following the judgment, the parties attended hearings in relation to determining parties’ liabilities to the other’s costs.

FreshAsia resisted paying the Mr Jing Lu’s legal costs on the basis that, despite Mr Lu being the clear winner post trial, neither party had filed Costs Budgets in this case, as is usually required for High Court claims. As such, FreshAsia’s counsel argued that neither party should be entitled to payment of anything more than court fees. If FreshAsia’s counsel were correct about this, it could have meant that Mr Lu would be out of pocket by well over £100,000, despite winning!

The team at Virtuoso Legal argued that FreshAsia was wrong as to their interpretation of the relevant rules.  In particular, the team, led by our Philip Partington, had rightly decided that because the case was expedited (taking only 4 months to go to trial) there was no Case Management Conference and therefore the requirement to file Costs Budgets was not triggered.  Mr Justice Arnold agreed and said that in the circumstances of this case, neither party was under any obligation to file Costs Budgets and that FreshAsia, as the losing party, should pay Jing Lu’s costs.

FreshAsia’s legal team then argued that, because they had been successful in relation to a small part of their claim, namely that the retention of some documents by Mr Lu was in breach of his contract, Mr Jing should not receive all of his costs.  Indeed, they sought a 20% reduction.  Mr Justice Arnold agreed, in principal, to some reduction, but only provided for a 5% reduction.  

The team at Virtuoso Legal then argued that FreshAsia should pay Jing Lu’s costs on the “indemnity basis”, rather than the standard basis.  The indemnity basis means that, usually, the receiving party receives a more favourable percentage of his total costs.  Mr Justice Arnold agreed that FreshAsia should pay Jing Lu’s costs on the indemnity basis and cited two main factors in coming to that decision:

First, that it had been unreasonable for FreshAsia to take this case to trial despite the weaknesses, which had been pointed out by an earlier judicial decision from Daniel Alexander QC (see our blog here).

Second, Virtuoso Legal’s letter of 15 January 2019 made a very reasonable offer of settlement, which was not accepted by FreshAsia. 

In the circumstances, FreshAsia was wholly unreasonable to pursue the case from the expiry of that offer and indemnity costs were awarded from its expiry, namely 18 January 2019.

The court ordered that FreshAsia pay 70% of incurred costs, which amounts to over £100,000, to Jing Lu within 14 days.

Justice for Jing
Jing is now able to continue to work without threat to his livelihood.

Justice for Jing: Comment from Virtuoso Legal

Of the recent decision, Philip Partington, Virtuoso Legal’s director and head of IP Protect and the London office, said as follows:

“The team at Virtuoso Legal are delighted at the result in favour of Jing.  It has been a pleasure to work with him over the last 6 months, albeit at a particularly stressful time for him.

In my view, this case illustrates that a former employee, in the same position as Jing, can successfully defend a case against a large company if they have the right legal team defending them.

When this case first arrived, I was deeply professionally troubled about the injustice of Jing being required to defend complex and expensive High Court proceedings, especially on a case which had very limited merits.  I decided to do everything in my power to enable justice for Jing.

I am also delighted that the court agreed with my interpretation of the rules and that my letter of 15 January (which I had planned in India during my Christmas holiday break!) was the deciding factor in the court’s reasoning for awarding indemnity costs for Jing.”

– Philip Partington

We will keep you all updated as to the result and will also be writing in our forthcoming blogs as to the consequences of this decision for all businesses.

Our client Mr. Jing Lu commented:

Thanks very much to Virtuoso Legal for bringing me justice. This success is only kept me my job, but also my family. I spent everything I have in defending this case and finally received peace of mind.

The legal team leader Philip is the best legal specialist and most honourable nice person. I am very lucky to meet Philip.  It is no doubt his team is the best I can find and they also have lots of winning experience.

No only professional, Philip and Elizabeth kindly care about my family and effects rather than making the money on the case. Without their help, I do not know how to survive this case.

For people like me, please take extra care on your contract. You may have different version of contracts. Employers may hide their tricky terms inside.

If you suffer the situation as me, please find a solicitor. And this solicitor is the expert you can find in this area. If they can help me, I believe they can absolutely help you.

Never give up your legal right and never be afraid of big companies. Eventually, the justice has been done.

I can say no more to thank this country, the law and especially this legal team.”

– Mr. Jing Lu

To speak to our team of IP specialists, please call:

0207 412 8372

JUSTICE FOR JING was written by Philip Partington and Dr. Martin Douglas Hendry

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