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UK Supreme Court denies Marks & Clerk permission to appeal in secret commission case – trial expected January 2025

By Signature Litigation
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Signature Litigation

The UK Supreme Court has rejected an application for permission to appeal by IP law firm Marks & Clerk and its affiliated partnership in the ongoing high profile secret commissions representative action claim brought by Commission Recovery Limited on behalf of a class of Marks & Clerk’s current and former clients. Trial is now expected to go ahead in January next year.

Lord Reed, Lady Simler and Lord Leggatt refused permission “on the ground that the appeal does not raise an arguable question of law”. Notably, Lords Reed and Leggatt were two of the five justices who decided Lloyd v Google before the Supreme Court in November 2021.

Marks & Clerk had argued at the High Court, and then again at the Court of Appeal, that the claim advanced by Commission Recovery Limited did not meet the “same interest” requirement needed for representative claims under CPR 19.8 (previously CPR 19.6). In each instance Marks & Clerk was unsuccessful.  The Court of Appeal upheld the High Court’s ruling that the claim should proceed under CPR 19.8 in a judgment handed down in January. That judgment was the first appellate ruling on the representative action regime since Lloyd v Google, and attracted significant interest within the legal market and elsewhere.

Commenting on the Supreme Court’s decision, Peter Rouse, director of Commission Recovery Limited, said:

“Since 2021 Marks & Clerk and its affiliated partnership have taken every possible step to try to avoid this claim being determined on a class-wide basis. Those challenges have failed each time, and I now look forward to the case proceeding to trial next year.”

Commission Recovery Limited is represented by Signature Litigation partners Daniel Spendlove and Neil Newing, and senior associate George Bazinas.

This news has been published in Solicitors Journal, Managing IP, Law360, The Global Legal Post, and World Intellectual Property Review.

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