Virtuoso Legal successfully defend leading scientists against Invista Textiles’ “unjust” Part 36 Offer, awarded substantial interim costs payment

VL Defend “unjust” Invista Part 36, Client Awarded Substantial Costs

In January 2019, the IP Protect team at Virtuoso Legal wrote about their successful defence of VideraBio Limited and Drs Botes, Chokkathukalam and Chen (the “Drs”) in a High Court breach of confidence claims brought by industry giant, Invista Textiles (UK) Limited.  Please see our earlier blog here and the full substantive Judgment in this case can be found here.

On 12 April 2019, Mr Justice Birss ordered that VideraBio and the Drs’ costs be paid by Invista Textiles and that an interim payment of a sum in excess of £446,000 be paid within 28 days. 

It is understood that Invista Textiles had incurred in excess of £1.8m in legal costs in unsuccessfully bringing these proceedings.

Recap

The Claimants in this case, “Invista” are part of the Koch Industries group based in Wichita, Kansas, USA,. Invista is one of the world’s largest producers of nylon and the chemical intermediates used to produce nylon. Invista were represented by “trial lawyers” Quinn Emanuel Urquhart & Sullivan LLP, including their Managing Partner, Sue Prevezer QC.

The Defendants are three former employees of Invista (Drs Botes, Chokkathukalam and Chen) and a biotech start-up “VideraBio”. The former Invista employees are all leading biotechnology scientists. Until her departure, Dr Botes was the R&D director of Invista’s “Sustainability Group” where she led research into production of bio-based nylon intermediates via fermentation as an alternative to current petrochemical-based production.

The Virtuoso Legal IP Protect litigation team, led by directors Elizabeth Ward (a former biotech scientist and founder of the IP specialist firm) and Philip Partington (head of IP Protect and the London Office of Virtuoso Legal), acted for the Defendants.

The Costs Hearing

Following the Judgment (see above), the parties attended hearings in relation to determining parties liabilities to the other’s costs.

During the numerous hearings, Invista Textiles resisted paying the VideraBio and the Drs’ legal costs on the basis that they had been “successful” in relation to their “Central Claim” and that they had “beaten” their Part 36 Offer. Indeed, Invista Textiles claimed that they should be awarded 50% of their costs following the relevant period after making a Part 36 Offer.

Ultimately, both arguments were rejected and Mr Justice Birss ruled that VideraBio and the Drs’ had been the overall successful party in the proceedings and that, while Invista’s Part 36 Offer had been “triggered”, it was unjust to deprive VideraBio and the Drs’ costs  in the circumstances of this case as it was not a “genuine” offer to settle the proceedings. 

Indeed, Mr Justice Birss stated that Invista’s Part 36 Offer had proved to be a barrier to settlement of this dispute because since the offer was made and not accepted and then the admissions were made the claimant seems to have been approaching this case as if it was entirely protected as to costs.

Further Analysis

Over the coming months we will have some further analysis on each aspect of this case. Below are links to further blogs on the key issues.

On Part 36 offers: INVISTA TEXTILES: What does it take to make an offer to settle “unjust”?

Comments

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 Drs Adriana Botes, Unni Chokkathukalam and Changlin Chen.  It has been a pleasure to work with the Drs over the last two years, albeit at a particularly stressful time for them.

In my view, this case illustrates that former employees, who are in the same position as the Drs in this case, can successfully defend a case against a large multinational corporation such as Invista Textiles if they have the right legal team defending them.

We will be writing in further detail about this decision, both in relation real world consequences and lessons learnt on the substantive judgment; but also on Invista’s unjust Part 36 offer, as it is a decision which has potentially wide spread repercussion in the field IP litigation.”

– Philip Partington

For more information about this judgment, please contact Philip Partington via email, or call:

02074 128 372

Virtuoso Legal successfully defend leading scientists against Invista Textiles’ “unjust” Part 36 Offer and awarded substantial interim costs payment was written by Dr. Martin Douglas Hendry


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