Paper hearing was ‘oral’

Score Draw Ltd v Finch ChD TLR 9 April

Paragraph 9.1 of the Practice Direction supplementing CPR Part 52 provides that where there has not been an oral hearing, any appeal should be by way of rehearing. However, in the present case, the hearing officer had offered the parties an oral hearing, but both had indicated that they did not want one. She determined the application before her on the basis of evidence, which was unchallenged, and written submissions. It was true that there had not been a hearing in the sense of there being attendance of the parties before a person who conducted an oral hearing, however, paragraph 9.1 is aimed at situations in which the procedures do not give the opportunity for anything like a hearing. The procedures in the Trade Mark Registry are such that there is something in the nature of a hearing, even if not an oral hearing. There was an exchange of cases; there was, if necessary, the deployment of evidence; and there was an opportunity to make submissions on it. The parties could have had a hearing if they had wanted one. In waiving that right, they had not fundamentally changed the nature of the proceedings. Accordingly, what had happened was a hearing for the purposes in paragraph 9.1.