“(1) Where more than one person has the same interest in a claim— (a) the claim may be begun; or (b) the court may order that the claim be continued, by or against one or more of the persons who have the same interest as representatives of any other persons who have that interest. (2) The court may direct that a person may not act as a representative. (3) Any party may apply to the court for an order under paragraph (2). (4) Unless the court otherwise directs any judgment or order given in a claim in which a party is acting as a representative under this rule— (a) is binding on all persons represented in the claim; but (b) may only be enforced by or against a person who is not a party to the claim with the permission of the court….”
“[78] The need of a legal standard against which to judge the claimed declarations is important. The reference above to para 117 of the Supreme Court's judgment in Unwired Planet shows why that is so. There is no such thing as a free standing FRAND claim. Although Vestel refers to the ITU rules it does not contend in these proceedings that they have legal force. [79] It is hard to know how to decide whether the declarations sought, untethered to any legal standard, actually could serve a useful purpose but that is not the basis on which I reject this part of the claim. I will take it that there is some arguable useful purpose. Even if that is so, the attempt to invoke the court’s declaratory jurisdiction has no reasonable prospect of success because it is not based on the existence or non-existence of a legal right.”
“(i) a declaration that the terms of the Access Advance draft PPL insofar as they relate to any patents in the HEVC Advance patent pool which designate the United Kingdom are not FRAND; (ii) alternatively, a declaration as to the terms which are FRAND for the patents within the HEVC Advance patent pool which designates the United Kingdom (alternatively, such patents within that pool as are owned by the Second Defendant).”
“The subject matter of the claim relates wholly or principally to property within the jurisdiction, provided that nothing under this paragraph shall render justiciable the title to or the right to possession of immovable property outside England and Wales.”
“The fact that the licences of the UK patents which would be FRAND would also license patents from other countries, cannot alter the fact that what Vestel is entitled to and is seeking is a licence under the UK patents.”
“[71] I am prepared to accept that if Vestel did claim to have a legally enforceable right against a patentee or a licensing agent of a patentee, whereby Vestel were entitled to be offered a FRAND licence under the UK SEPs in the HEVC Advance pool, then the subject matter of that particular claim would be the UK SEPs. The question that claim would be concerned with is the licence terms which are available to licence those UK rights. The fact that the only licence of the UK patents which is FRAND would also involve licensing foreign patents does not alter the subject matter of the claim. The fact that the UK patents in the FRAND licence were only 5% or less of the patents licenced by it would make no difference. I would hold that such a claim was one which related wholly or principally to property within the jurisdiction and therefore fell within gateway 11. If I am differing from the judge below in this respect it may be because in the court below Vestel never clearly narrowed its claim to the extent it now does. [72] However Vestel's ‘claim’ here is for the court to exercise the inherent jurisdiction to make a FRAND declaration despite the absence of an assertion of a right to such a licence ….”
“(5) A declaration that the terms of the [Avanci Licence] in so far as they relate to any patents in the Avanci 5G Pool which designate the United Kingdom are not FRAND and therefore do not comply with the relevant FRAND commitments given under clause 6.1 of the ETSI IPR Policy; alternatively a declaration as to the terms which are FRAND for those patents (alternatively, such patents within that pool as are owned by InterDigital) (6) A declaration that a FRAND licence covering the Challenged Patents, the InterDigital UK SEP Portfolio, the InterDigital International Portfolio or the portfolio(s) of any and each other Avanci 5G Pool Member (whether examining only United Kingdom patents or more broadly) is a licence (i) between Tesla and Avanci, (ii) that is worldwide in scope and (iii) covers the entirety of the Avanci 5G Pool.”
“57. As a matter of French law, where an entity that has made a Licensing Declaration either: (i) appoints an agent or representative to enter into or grant licences on its behalf; or (ii) authorises a representative to enter into sublicences on its behalf, the agent or representative is jointly liable (alongside the entity that has made a Licensing Declaration) for any failure to effect good faith performance of the FRAND Commitment and, accordingly, the FRAND Commitment is also enforceable by any beneficiary of the FRAND Commitment against and/or through such agent or representative (in addition to the entity that has made a Licensing Declaration). 58. As explained in paragraphs 21-22 above, the Avanci 5G Pool Members have appointed Avanci as a licensing agent to enter into or grant licences in respect of the Avanci 5G Pool on their behalf. Accordingly, Tesla is entitled to enforce the FRAND Commitment of each Avanci 5G Pool Member, including InterDigital, by seeking a licence from and/or through Avanci covering the entirety of the Avanci 5G Pool. 59. Tesla has, as pleaded in Section D(ii) above, relied upon and invoked InterDigital’s and Avanci’s obligation to grant a licence covering the Avanci 5G Pool (and/or the Challenged Patents) on FRAND terms, and has given an unconditional undertaking to take a licence covering the Avanci 5G Pool on such terms as are determined by this Court (see paragraph 44 above). Avanci accordingly owes a contractualhas an obligation to effect the good faith performance of the relevant FRAND Commitments by offering and/or granting such a licence.”
“119 The grant of a declaration is discretionary. The law has developed since the statement of principle by Lord Diplock in the leading case of Gouriet v Union of Post Office Workers[1978] AC 435 , 501, where Lord Diplock stated: ‘For the court to have jurisdiction to declare any legal right it must be one which is claimed by one of the parties as enforceable against an adverse party to the litigation, either as a subsisting right or as one which may come into existence in the future conditionally on the happening of an event.’ I have looked again at Gouriet’s case, the decision of this court in Meadows Indemnity Co Ltd v Insurance Corpn of Ireland plc[1989] 2 Lloyd’s Rep 298 ; In re S (Hospital Patient: Court’s jurisdiction)[1996] Fam 1 ; Feetum v Levy[2006] Ch 585 and, most recently, Office of Fair Trading v Foxtons Ltd[2009] 3 All ER 697 , as well as the decisions referred to in Wall LJ’s judgment. There is no doubt that the circumstances in which the court will be prepared to grant declaratory relief are now considerably wider than they were thought to be after Gouriet and Meadows. In the words of Jonathan Parker LJ in Feetum v Levy[2006] Ch 585 , para 82: ‘things have indeed moved on since the Meadows case was decided; and … the courts should not nowadays apply such a restrictive meaning to the passage in Lord Diplock’s speech in Gouriet’s case.’ 120 For the purposes of the present case, I think that the principles in the cases can be summarised as follows. (1) The power of the courts to grant declaratory relief is discretionary. (2) There must, in general, be a real and present dispute between the parties before the court as to the existence or extent of a legal right between them. However, the claimant does not need to have a present cause of action against the defendant. (3) Each party must, in general, be affected by the court’s determination of the issues concerning the legal right in question. (4) The fact that the claimant is not a party to the relevant contract in respect of which a declaration is sought is not fatal to an application for a declaration, provided that it is directly affected by the issue; (in this respect the cases have undoubtedly “moved on” from Meadows). (5) The court will be prepared to give declaratory relief in respect of a “friendly action” or where there is an “academic question” if all parties so wish, even on private law issues. This may particularly be so if it is a “test case”, or if it may affect a significant number of other cases, and it is in the public interest to decide the issue concerned. (6) However, the court must be satisfied that all sides of the argument will be fully and properly put. It must therefore ensure that all those affected are either before it or will have their arguments put before the court. (7) In all cases, assuming that the other tests are satisfied, the court must ask: is this the most effective way of resolving the issues raised? In answering that question it must consider the other options of resolving this issue.”
“Accordingly the instant case is, in my judgment, one where the claimants, as designated members, are not merely directly interested in the issue as to the validity of the appointment, but directly affected by it.”
“It seems to me that, when considering whether to grant a declaration or not, the court should take into account justice to the claimant, justice to the defendant, whether the declaration would serve a useful purpose and whether there are any other special reasons why or why not the court should grant the declaration.”
“In my view the authorities show that the jurisprudence has now developed to the point at which it is recognised that the court may in an appropriate case grant declaratory relief even though the rights or obligations which are the subject of the declaration are not vested in either party to the proceedings. That was certainly the view of the court in In re S and it is also the clear implication of the observations in Feetum v Levy and the Rolls-Royce case that things have moved on since Meadows. In the Mercury case it was not considered relevant that BT had rights under the licence and it was no bar to the proceedings that Mercury did not. To that extent the position is mirrored in this case, in which Tameside has obligations under the agreement but Milebush has no rights. I can see no reason in principle why the nature of the underlying obligation should be critical, although there may well be other reasons why in the particular case a declaration should not be granted. The most important consideration is likely to be whether the parties have a legitimate interest in obtaining the relief sought, whether to grant relief by way of declaration would serve any practical purpose and whether to do so would prejudice the interests of parties who are not before the court.”
“71. The phrase ‘the same interest’, as it is used in the representative rule, needs to be interpreted purposively in light of the overriding objective of the Civil Procedure Rules and the rationale for the representative procedure. The premise for a representative action is that claims are capable of being brought by or against a number of people which raises a common issue or issues: hence the potential and motivation for a judgment which binds them all. The purpose of requiring the representative to have the same interest in the claim as the persons represented is to ensure that the representative can be relied on to conduct the litigation in a way which will effectively promote and protect the interests of all the members of the represented class. That plainly is not possible where there is a conflict of interest between class members, in that an argument which would advance the cause of some would prejudice the position of others….. 72. As Professor Adrian Zuckerman has observed in his valuable book on Civil Procedure, however, a distinction needs to be drawn between cases where there are conflicting interests between class members and cases where there are merely divergent interests, in that an issue arises or may well arise in relation to the claims of or against some class members but not others. So long as advancing the case of class members affected by the issue would not prejudice the position of others, there is no reason in principle why all should not be represented by the same person: see Zuckerman on Civil Procedure: Principles of Practice 4th ed (2021), para 13.49. As Professor Zuckerman also points out, concerns which may once have existed about whether the representative party could be relied on to pursue vigorously lines of argument not directly applicable to their individual case are misplaced in the modern context, where the reality is that proceedings brought to seek collective redress are not normally conducted and controlled by the nominated representative, but rather are typically driven and funded by lawyers or commercial litigation funders with the representative party nearly acting as a figurehead. In these circumstances, there is no reason why a representative party cannot properly represent the interests of all members of the class, provided that there is no true conflict of interest between them.”
“A separate point was argued by Mr Pollock, that a representative action should not be permitted so as to allow a plaintiff to by-pass Order 11, where some of the class could not be served here as defendants. We were told that this point appears not to have been taken before. Ord. 15, r. 12 contains no requirement that the members of a class represented by a defendant should all be capable of being served within the jurisdiction. Furthermore it confers a discretion, by the words ‘unless the court otherwise orders’, to discontinue the representative aspect of the action. And there is always a discretion to hold that some other forum is more appropriate. So I do not consider that a representative action is necessarily inappropriate whereas some of the class represented by a defendant cannot be served here.”