Before:

 

1.	LORD JUSTICE PETER GIBSON : This appeal relates to a registered trade mark, Philosophy di Alberta Ferretti ("the Mark"), which is registered for "soaps, perfumery, essential oils, cosmetics, hair lotions". The application for registration was filed on 5th December 1994 and the registration procedure was completed on 19th January 1996. The defendant, Ferretti Studios SRL, is the registered proprietor. On 15th February 2001 the claimant, Philosophy Incorporated, which is an American corporation incorporated under the laws of Arizona, applied under CPR Part 8 for the revocation of the Mark for non-use pursuant to section 46(1)(a) of the Trade Marks Act 1994Acts ("the Act"). Master Bragge heard and determined the application. Both sides had filed evidence, but there was no cross-examination. The Master dismissed the application, on the basis that there had been genuine use of the Mark within the period of five years following the date of the completion of the registration procedure, and held that even if there had not been, there were proper reasons for non-use within that period. The Master refused to make an order for partial revocation. He rejected a preliminary objection taken by the defendant that the application had been brought prematurely. The Master refused the claimant permission to appeal, but permission was granted by Jonathan Parker LJ. The defendant by a Respondent's Notice seeks permission to cross-appeal on the premature application point, and we gave that permission.
2.	It is convenient at this point to set out the legislative provisions which govern the dispute. Article 12 of the First Council Directive 89/104 of 21st December 1988 dealt with grounds for revocation of a registered trade mark. Effect was given to that part of the Directive by section 46 of the Act. Section 46 provides, so far as material:
	"(1)   The registration of a trade mark may be revoked on any of the following grounds-    (a)   that within the period of five years following the date of completion of the registration procedure it has not been put to genuine use in the United Kingdom, by the proprietor or with his consent, in relation to the goods or services for which it is registered, and there are no proper reasons for non-use. ... ...   (3)   The registration of a trade mark shall not be revoked on the ground mentioned in subsection (1)(a) or (b) if such use as is referred to in that paragraph is commenced or resumed after the expiry of the five year period and before the application for revocation is made:    Provided that, any such commencement or resumption of use after the expiry of the five year period but within the period of three months before the making of the application shall be disregarded unless preparations for the commencement or resumption began before the proprietor became aware that the application might be made.    ... (5)   Where grounds for revocation exist in respect of only some of the goods or services for which the trade mark is registered, revocation shall relate to those goods or services only."
3.	There are four issues raised by the appeal and the cross-appeal:
	(1)   Was the application premature? (2)   If not, was there genuine use of the Mark within the five-year period? (3)   If not, are there proper reasons for the non-use? (4)   If either or both of issues (2) and (3) is, or are, resolved in favour of the proprietor, should there be a partial revocation of the registration?
	(1) Premature application
4.	The five-year period ran from 20th January 1996. The application for revocation was made within three months from the expiry of that period. Mr Edenborough for the defendant says that that is not permissible under the Directive or section 46(3). He contends that the earliest an application can be brought is the day after the expiry of a further period of three months from the expiry of the five-year period, and he submits that that is apparent from the proviso to section 46(3) which refers to that period as commencing after the expiry of the five-year period and being before the making of the application. Similarly, Article 12.1 refers to a period of three months preceding the filing of the application for revocation which began, at the earliest, on expiry of the continuous period of five years. This is not in fact a case where the main part of section 46(3) applies by reason of a commencement or resumption of use after the five-year period but before the application for revocation. But on Mr Edenborough's submission that is immaterial. His argument is purely one of construction of the statute read in the light of the Directive.
5.	On this point the Master said this:
	"It seems to me that on the proper construction of Section 46 it is possible for a claimant/applicant to make a claim for revocation in any case where five years have elapsed since the date of completion of the registration procedure and there is no requirement to wait for any further period. What in essence Section 46 does is to give a registered proprietor a period of five years from the date the mark is actually put on the register to put it into use. I observe that this analysis coincides with the views expressed by the editors of Kerly's Law of Trade Marks, 13th edition, paragraph 9-43. It does not seem to me that this approach is inconsistent with Article 12 of [the Directive] read as a whole. Article 12 is clear, namely it deals with the relevant period first (i.e. five years), it then deals with genuine use in the interval after the expiry of the five years period and the date of any revocation proceedings, and it then makes for a proviso regarding genuine use in the interval after the expiry of the five year period and the application for revocation. The proviso only arises at the point of the expiry of the five year period of non use and only for the purpose identified. Unlike Section 26(1)(b) of the Trade Marks Act 1938Acts the present Act does not in my view provide for any period of grace. Accordingly I cannot accept the submission made to me that Section 46 is, in fact, similar to the five year and one month period that was required under section 26."
6.	Mr Arnold QC for the claimant supports the Master's reasoning. He argues that Mr Edenborough's argument involves an over-fine textual analysis which is inappropriate when interpreting European Community legislation. He says that the purpose of the three-month period is clear. It is to give the prospective applicant seeking revocation three months in which to seek to resolve matters with the proprietor by negotiations. If the proprietor commences use of the trade mark only when he gets wind of the prospective application, such use will be disregarded provided the application is filed within three months. Article 12 and section 46, he says, are both clear that the relevant period in which use of the Mark must be commenced is five years, not five years and three months.
7.	I agree with Mr Arnold. There can be no doubt that by section 46(1) the period of five years is the governing period for non- use. By the main part of section 46(3) the proprietor is informed, and the applicant for revocation is warned, that if there is a commencement or resumption of use after the expiry of the five-year period before the application for revocation is made, revocation will not be granted. But that is made subject to a limited exception introduced by way of proviso for the benefit of the applicant for revocation. The commencement or resumption is to be disregarded within a limited period, unless preparations for the commencement and the resumption begin before the proprietor became aware that the application might be made. This limited proviso cannot commence earlier than the expiry of the five-year period and is brought to an end by the application. It is expressed to be a three-month period. There is no problem if the application for revocation is delayed until at least three months have expired after the expiry of the five-year period. The problem arises if the applicant for revocation applies within three months from the expiry of the five-year period. But I pose the question: why should not the applicant for revocation apply promptly after the end of the five-year period? I can see no legislative purpose in not allowing such a prompt application. Further, one might expect that a prompt application would serve the legislative purpose better. Trade marks confer a statutory monopoly on the proprietor. Their function is to give that monopoly to the proprietor for the use of the trade mark. If it is not used for the five-year period, it should be revoked. The editors of Kerly say in paragraph 9-43:
	"The application for revocation can be brought as soon as five years has elapsed. In fact, if an application under section 46(1)(a) is contemplated it is normally prudent to commence the application as soon as possible after the five-year period has elapsed, for reasons connected with other constraints imposed by the Act.
	Then in paragraph 9-44:
	"The general effect of this is that it is risky to delay commencing the application for revocation..."
8.	I agree. It would be remarkable if the intention of the legislation had been to extend in all cases the five-year period by three months, when the only indication of that intention is by the mechanism of the proviso to section 46(3). The proviso which affects only the case where a commencement or resumption of use has occurred outside the five-year period, the proviso avoiding the undesirable consequence of a proprietor, once he learns of the likelihood of an application for revocation perhaps through the intending applicant opening negotiations, promptly starting use of the trade mark. In my judgment it is inappropriate to give the statutory language the narrow textual analysis adopted by Mr Edenborough. I would construe the proviso to section 46(3) as requiring that what Mr Edenborough has called the grace period cannot exceed three months. It must commence after the expiry of the five-year period but must end with the application for revocation. I would therefore reject the defendant's submission on this point.
	(2) Genuine use
9.	The defendant says that genuine use has been made of the Mark in the United Kingdom in the five-year period and that the Master was right on this point. By section 100 of the Act, if a question arises as to the use to which a registered trade mark has been put, it is for the proprietor to show what use has been made of it.
10.	Of the witness statements put in on both sides, I must refer in some detail to that of Paolo Badioli, the finance director of the defendant. I need mention only briefly the evidence of Nicola Boxall of the claimant's solicitors and that of Monica Fraternali, the area manager Europe of Aeffe SpA. Miss Boxall gave evidence of what was shown in the Alberta Ferretti website and of what she saw when visiting the three outlets referred to in that website which are given for the United Kingdom. Those outlets are all London outlets, and on 6th February 2001, that is to say shortly after the end of the five-year period, she visited those outlets but did not find any evidence of any goods for which the Mark was registered being sold or offered for sale. Miss Fraternali, who criticised aspects of Miss Boxall's evidence, herself gave no evidence of any such use of the Mark in this jurisdiction, though one might have expected her to have knowledge of any such use had it occurred at a relevant time. She says nothing to support the fact of any such use.
11.	It was on the evidence of Mr Badioli that the Master decided that there had been genuine use. It is convenient to refer to what Mr Badioli says on this and on other issues at this point. In paragraph 3 he refers to the fact that the defendant is the owner of the Mark and has granted Aeffe SpA an oral licence for Aeffe SpA to use and grant third parties a licence to use the Mark in class 3 in respect of perfumes and cosmetics. He says this:
	"5.   On 29 April 1992 [the defendant] entered into an exclusive license agreement with the Italian company Proteo S.p.A. for the trademark ALBERTA FERRETTI and for trademarks which might be developed in the future owned by [the defendant] in international class 3 (perfume, cosmetics).  6.   On 26 March 1996 [the defendant] terminated the licence agreement due to a breach of the contract by Proteo SPA.  7.   Subsequently, on 18 July 1996 Proteo S.p.A. went into bankruptcy and a receiver was appointed by the Court of Milan.  8.   On 12 September 1997 the receiver of Proteo S.p.A. informed [the defendant] about a stock of products bearing the trade mark Alberta Ferretti that he intended to sell.  9.   The pending bankruptcy proceedings of Proteo S.p.A. and the existence of the stock of products to be sold out, hampered the search of new licensees for the European market for cosmetics and perfumes marked ALBERTA FERRETTI and [the Mark] because of the bankruptcy of Proteo S.p.A. and the need to find a new licencee the whole project to sell perfumes and cosmetics, including the launch of the products in the UK, was delayed.  10.   During autumn 1999 Aeffe S.p.A. started negotiations for the licensing of cosmetics and perfumes marked ALBERTA FERRETTI and [the Mark] with the British company Procter & Gamble Technical Centres Ltd ... and a confidentiality and non disclosure Agreement was signed by the parties in counterpart on 1 and 17 December 1999. ...  11.   Further negotiations occurred between December 1999 and April 2000 between Aeffe Spa and Procter and Gamble UK in respect of an exclusive worldwide license agreement for the trademarks [the Mark] and ALBERTA FERRETTI for perfumes and cosmetics including the UK. Copies of the correspondence between the parties are exhibited as PB2. In the fax from Markus Strobel [of Procter & Gamble UK] he states that `if you take the 18 months it takes to develop the fragrance, plus the initial 2 years of global roll-out...'I have been informed that it can take several years to develop a perfume before launching on the market. In his fax Mr Strobel also says `it is one of our competitive advantages here at Procter & Gamble to research campaigns before going to market to check to see if they are strong enough'.  12.   In consequence of the above negotiations, a license agreement for the trademarks [the Mark] and ALBERTA FERRETTI for perfumes and cosmetics including the UK was signed on 7 April 2000 between the German company Eurocos Cosmetic Gmbh, which is part of the same group of companies as Procter and Gamble UK, on the one side, and [the defendant], Aeffe S.p.A. and Alberta Ferretti on the other side.  13.   I have been informed that 500 bottles of [the Mark] perfume were manufactured in the UK by Procter and Gamble prior to October 2000. A photograph of the front and rear of the bottle is now exhibited as PB3. The contact is a `L Peacock of Procter & Gamble' ... . On the front of the bottle there is a label bearing [the Mark]. On the rear of the bottle appear the words `Made in UK'. These bottles were sent to Italy on 19 October 2000.  14.   These bottles were then sold to Aeffe UK Limited and a copy of an invoice dated 21 December 2000 is exhibited as PB4."
12.	It is to be noted that in the first sentence of paragraph 13 the source of the information for Mr Badioli is not given. It is therefore impossible to say what credence should be given to the information which he repeats. The invoice is one issued by Aeffe SpA and is dated 21st December 2000. It is addressed to Aeffe UK Ltd. The invoice is in a form which would appear to have been produced as one for clothing, as it refers to clothing sizes. But the invoice refers to 500 bottles of perfume bearing the Mark at a unit price of 10,000 lire, making a total of 5 million lire, or a sum a little in excess of £1500. It also contains the words "merce spedita a" -- goods dispatched to -- "AEFFE UK LTD", and a London address is given. There is no entry in the space provided for the insertion of the carrier. The conditions of sale include a title retention clause so that title did not pass until full settlement was made. There is no evidence as to when the 500 bottles of perfume were despatched, as to how they were despatched or whether the bottles reached this jurisdiction, nor what was done with them. The illustration of the bottle shows that on the back of the bottle, under "Eau de Parfum", is the word "contact" and then the name "L Peacock" of Proctor & Gamble with his address is given.
13.	The Master said in relation to this issue:
	"14.   The onus is on the registered proprietor to show what use has been made of the mark. Mr Badioli has adduced evidence which is not for present purposes challenged of a licence agreement of 7 April 2000 and pursuant to that supply into the United Kingdom of a number of relevant items, albeit not a great number as shown by the invoice of 21 December 2000. In NODOZ Trade Mark [1962] RPC 1 at page 7 Wilberforce J pointed to the fact that while in a suitable case one single act of use of a mark may be sufficient, such act ought to be established, if not by conclusive proof, by any rate overwhelmingly convincing proof. That statement was accepted in FLORIS Trade Mark [2001] RPC 239 at page 333. It is established that bona fide use of a mark on samples can constitute use (Notes of Official Rulings 1944, 61 RPC 148). I did not understand the Claimant to suggest that the transaction, the subject of the 21 December 2000 invoice, was not a genuine one.  15.   I have reviewed the totality of the evidence and in my judgment it establishes genuine use in the United Kingdom in the relevant period."
14.	Thus the Master appears to find genuine use through the licence agreement of 7th April 2000 and the supply of 500 bottles of perfume into the United Kingdom.
15.	In relation to what constitutes "genuine use" for the purposes of section 46(1)(a) Mr Arnold draws our attention to two recent authorities. The first is Euromarket Designs Inc v Peters [2001] FSR 20 at paragraph 50-51, where Jacob J says this:
	"Miss Vitoria [counsel] ... says the reference to `genuine' is merely in contradistinction to `sham'. Small though the use may have been, there was nothing fake about it. The mark appeared in the United Kingdom in connection with genuine transactions and that is enough.    I disagree. It seems to me that `genuine use' must involve that which a trader or consumer would regard as a real or genuine trade in this country. This involves quantity as well as the nature of the use. In part it is a question of degree and there may be cases on the borderline. If that were not so, if Miss Vitoria were right, a single advertisement intended for local consumption in just one U.S. city in a journal which happened to have a tiny distribution in the United Kingdom would be enough to save a trade mark monopoly in this country. Yet the advertisement would not be `sham'. This to my mind shows that Miss Vitoria's gloss on the meaning of `genuine' is not enough, and the only stopping place after that is real trade in this country."
16.	The second authority is Laboratories Goemar SA's Trade Marks [2002] ETMR 34. Jacob J said this:
	"29.   I take the view that, provided there is nothing artificial about a transaction under a mark, then it will amount to `genuine' use. There is no lower limit of `negligible'. However, the smaller the amount of use, the more carefully must it be proved, and the more important will it be for the trade mark owner to demonstrate that the use was not merely `colourable' or `token', that is to say done with the ulterior motive of validating the registration. Where the use is not actually on the goods or the packaging (for instance it is in an advertisement) then one must further enquire whether that advertisement was really directed at customers here. For then the place of use is also called into question, as in Euromarket.  30.   I think that formulation fits exactly with what I said in [Euromarket]. As a matter of commerce small sales are nonetheless sales under and so uses of the mark. The objective observing trader or consumer would so say. The absence of any purpose, other than trying to sell goods under the mark, would lead him to the conclusion that the uses were genuine."
17.	The judge in that case decided to make a reference to the European Court of Justice on whether a de minimis use could be genuine use. Mr Arnold was content to proceed in this court on the footing that Jacob J's statement of the law was correct whilst reserving the right to argue elsewhere that a minimal use was not sufficient.
18.	Mr Arnold submits that the two matters relied on by the Master did not enable the Master properly to find genuine use. He says of the licence agreement that it neither constituted, nor was evidence of, genuine use or use at all in the UK within the relevant five-year period and that at best it constituted a preparation for use. I add at once that Mr Edenborough very properly conceded that the licence in itself could not constitute genuine use. As for the 500 bottles of eau de parfum, Mr Arnold points out that there was no finding as to whether the supply into the UK occurred within the relevant period, and he argues that the Master should have found that the defendant had not established such supply into the UK within that period. He says that in any event it was wrong to hold that it constituted genuine use for the following reasons:
	(1)   On 6th February 2001, that is to say within three weeks after the expiry of the five-year period, no goods for which the Mark was registered were on ordinary commercial sale in the UK. (2)   The bottles with the marking "contact L Peacock" were plainly not intended for ordinary sale - they appear to have been pre-production samples - and whilst the use of samples in an appropriate case is capable of constituting genuine use, the fact that the only use is as samples means that the circumstances of such use must be carefully considered. Here, he says, more questions are raised than answered by the evidence. (4)   The use of the Mark on 500 bottles sold for about £1500 is very small. (5)   The fact that a single transaction is relied on means that it should be established by overwhelming convincing proof, to use Wilberforce J's phrase. Here the evidence of the transaction said to constitute the genuine use is strikingly unconvincing. (6)   The transaction evidenced by the invoice was that of a sale between two associated companies. (7)   There are suspicious and unexplained features of the transaction, such as its timing right at the end of the five-year period, the production of the bottles within less than six months of the date of the licence agreement (contrary to Mr Strobel's statement of the time it takes to develop a fragrance), the sending of the bottles from England to Italy and then apparently back to England, without any explanation of the transaction, and the invoice being one which is in a form relating to clothing.
19.	He further relies on the point that the use relied on is use by Aeffe SpA, not by the defendant, whose part in the transaction is not explained.
20.	Mr Edenborough relies only on the fact that there was a sale of relevant goods bearing the Mark to a company in the jurisdiction which was a different legal entity from the consignor. He, too, says that the bottles were samples, and he argues that that is sufficient genuine use to prevent revocation. He suggested that the points about the inadequacy of Mr Badioli's evidence should have been the subject of cross-examination if that evidence was to be challenged. But there was no such application. He also points to the fact that the Master in this case had practised in the intellectual property field whilst he was at the Bar. Accordingly he submits that due respect should be given to the Master's conclusions.
21.	I, of course, accept that proper respect must be given to the decision of the Master, particularly having regard to his expertise in this field. But I regret that I am unable to accept Mr Edenborough's submissions on this point, essentially for the reasons given by Mr Arnold. It was for the defendant to prove the use that had been made of the Mark in the United Kingdom within the five-year period. The claimant is free to criticise the inadequacies of the evidence put before the court. I cannot see how a court properly directing itself as to the law could conclude on the exiguous and unsatisfactory evidence relied on by the defendant that there was genuine use of the Mark in the jurisdiction in the relevant period. The licence is plainly inadequate for such use. On the assumption, which I would be prepared to make, that the invoice evidenced a genuine sale, I do not see how the Master could properly find that there was a relevant use in the United Kingdom in the relevant period, or that, even if the 500 bottles did reach the associated company of the consignor in England in that period, that was in itself a genuine use when the bottles were plainly not intended for ordinary commercial sale or distribution because of the marking of the contact on them. The whole transaction cries out for an explanation. The bottles may well be samples, but not, as I see it, without further evidence, samples to be used in the ordinary commercial way in which samples are used to induce sales in real trade. No explanation has been forthcoming as to the circumstances of the transaction in question. In my judgment on the evidence the Master was wrong to find that there had been a genuine use of the Mark in the jurisdiction in the relevant period.
	(3) Proper reasons for non-use
22.	The Master said on that issue:
	"If it were not for the use towards the end of the five year period deposed to by Mr Badioli and the licence I would not, on balance, have been satisfied that the Defendant had provided any proper reasons for non use. In Invermont [1997] RPC 125 at page 130 the hearing officer indicated that the phrase "proper reason for non-use" meant "apt, acceptable, reasonable, justifiable in all the circumstances", related to abnormal situations in the particular industry or market or even some temporary but serious disruption affecting the registered proprietor's business. Park J considered Section 46 of the Act and the Invermont decision in Magic Ball Trade Mark [2000] RPC 439. In that case he upheld the decision of the Hearing Officer to the effect that the problems which the registered proprietor had set out in the evidence were properly characterised as exceptional and not as normal or routine. In that case the evidence was that there were considerable production difficulties outside the control of the registered proprietor. 16.   In the present case, however, it does not seem to me that the problems with the first licencee (Proteo) and the unspecified problem with stock can amount to a proper reason for non-use, save possibly for a comparatively short period. However, to my mind, commercial delays in marketing of the type described in paragraph 11 by Mr Badioli may amount to `proper reasons'. Accordingly I would if necessary have found that there were proper reasons for non-use in the particular circumstances of this case in the period from the date of the Procter and Gamble negotiations. From that date it appears to me that there can be said to have been preparations for use and proper reasons for any non-use are indicated in the evidence in the sense of acceptable reasons. It is important to judge the reasons in a business sense while bearing in mind the requirement to either use a mark or lose it."
23.	Mr Arnold criticises the Master's finding that there were proper reasons. He points out that the commercial delays described by Mr Badioli related to the development of a fragrance and a marketing campaign. They were not exceptional but normal delays, as Mr Badioli's evidence also shows, and as such could not constitute proper reasons for non-use, even for the comparatively short period from autumn 1999, when the negotiations with Procter & Gamble commenced, to the expiry of the five-year period. Mr Arnold supports the Master's conclusion in relation to the period prior to autumn 1999.
24.	Mr Edenborough submitted that it would be inequitable to hold that the proper reasons for non-use had to extend throughout the five-year period. He argued that provided the reasons appeared proper for part of the period, that was sufficient to prove that there were proper reasons for non-use in the five-year period. He further argued that in this case the reasons for the delay in the marketing of goods under the Mark were outside the control of the respondent. The insolvency of Proteo and the ensuing complications that resulted when the receiver informed the defendant that he intended to sell the remaining stock bearing the Alberta Ferretti mark at all events could not be characterised as normal commercial delays. He said it was due to these problems that the defendant had to find a new distributor and that these events were abnormal and constituted proper reasons for not using the Mark. He also argued that due consideration ought to be given to all the individual reasons and to the cumulative effect of the individual reasons, such that, even if an individual reason was insufficient, the cumulative effect might be sufficient. He says that these problems to which Mr Badioli refers ought to have supported the conclusion of the Master that there were proper reasons for non-use.
25.	I cannot accept Mr Edenborough's submissions. He has properly accepted that it is for the proprietor to show that he had proper reasons for not using the Mark in the relevant period in this jurisdiction. The proprietor is able to show proper reasons by drawing attention to the existence of obstacles to such use arising independently of the will of the proprietor (see Article 19(1) of the TRIPS agreement). In the present case there seems to me to be no such evidence that at any time the defendant made any attempt to use the Mark in this jurisdiction in relation to any of the categories of goods for which it held the registration of the Mark. It seems to me to be somewhat fanciful to suggest that because the licensee of the Alberta Ferretti trade mark may have had some other rights in respect of other marks developed by the defendant (though it is impossible to say from the evidence put in about the licence how far that extended) the defendant was prevented from, or impeded in, using the Mark in this country. There is no evidence that the receiver of Proteo in Italy was concerned with goods other than those bearing the mark "Alberta Ferretti". The termination of Proteo's licence had occurred only two months into the five-year period. Nothing at all seems to have happened for three and a half years, and then the defendant embarked on negotiations with Procter & Gamble, a course which, as the evidence shows, was likely to lead to further extensive delays before a product falling within the licence agreement could be sold in this country. A proprietor who does nothing for most of the five-year period and then embarks on a procedure known to be lengthy but intended to lead to goods bearing the Mark being produced for sale cannot in my judgment say that the ordinary commercial delays in producing a new product bearing the Mark amounted to proper reasons for non-use for the five-year period.
26.	In my judgment the Master was wrong to find that in Mr Badioli's witness statement there was material on which he could properly conclude that proper reasons for non-use had been given. On the contrary, as it seems to me, the evidence showed that the delays that occurred after the negotiations with Procter & Gamble commenced were ordinary commercial delays, and not abnormal at all. I would therefore not accept the Master's view on this issue.
	(4) Partial revocation
27.	The conclusions which I have reached render it unnecessary for me to consider the claimant's further ground of appeal that the Master should, in any event, have revoked the registration in respect of some of the goods to which the registration of the Mark related.
28.	Accordingly, I would allow this appeal, set aside the order of the Master and order that the registration of the Mark be revoked under section 46(1)(a) for non-use.
29.	LORD JUSTICE BROOKE : I agree that this appeal should be allowed for the reasons given by Lord Justice Peter Gibson, with which I agree. I also agree with the order he proposes. I wish only to add some observations about the point of practice which Mr Edenborough has raised in relation to the time for filing a respondent's skeleton argument in an appeal court.
30.	The reason why early service of a respondent's skeleton argument is needed was explained on page 86 of the Review of the Court of Appeal (Civil Division), commonly known as the Bowman Report. It reads:
	"Where leave is granted by the CA or is not required, we consider that the respondent should submit his or her skeleton argument within a specific period of being served with the notice of appeal. That period should perhaps be 28 days. The respondent's skeleton argument is needed at that stage to assist the case management decisions we refer to below. The respondent must serve his or her skeleton on the appellant."
31.	The Bowman Report spoke of an application for leave to appeal and an earlier notice of intention to appeal in the context of its study of the business of the Court of Appeal.
32.	In the event, the draftsman of Part 52 of the Civil Procedure Rules introduced the concept of a single document called an appeal notice. CPR 52.4 sets out the requirements relating to the filing of the Appellant's Notice which initiates the appeal process. Among other things, it requires service of the appeal notice as soon as practical, and, in any event, not later than seven days after it is filed. The reason for this requirement, even when permission to appeal is required, is explained by this court in its recent judgment in Jolly v Jay [2002] EWCA Civ 277.
33.	Paragraph 5.19 to 5.24 of the Practice Directionpdp-52to CPR Part 52 fills out the practice requirements at this stage of an appeal. In particular, paragraph 5.21 and 5.22 read:
	"5.21   Except where the appeal court orders otherwise a sealed copy of the appellant's notice, including any skeleton arguments, must be served on all respondents to the appeal in accordance with the timetable prescribed by rule 52.4(3) except where this requirement is modified by paragraph 5.9(2) in which case the skeleton argument should be served as soon as it is lodged.  5.22   Unless the court otherwise directs a respondent need not take any action when served with an appellant's notice until such time as notification given him that permission to appeal has been given."
34.	Provision for a respondent's skeleton argument is made by paragraph 7.6 to 7.7A of that Practice Direction. The effect of these provisions is that a respondent's skeleton argument may be included within a respondent's notice. If it is not, it should be lodged and served no later than 21 days after the respondent receives the appellant's skeleton argument. A respondent's notice is not obligatory in small claims appeals.
35.	I need not concern myself with the time for filing a respondent's notice, which is fully set out in CPR 52.5.
36.	Paragraph 7.7 of the Practice Direction provides that if a skeleton argument is not served within a respondent's notice, it should be lodged and served no later than 21 days after the receipt of the appellant's skeleton argument. This concept requires some explanation, and the explanation which follows is based on the different requirements for a respondent's notice contained in CPR 52.5.
37.	If permission to appeal has been given by the court below, or no permission to appeal is required, this time will start to run from the time the appellant serves the notice of appeal accompanied by the skeleton argument. If the respondent is served with notification that the application for permission to appeal and the appeal itself are to be heard together, time will run from that notification. If on the other hand the appeal court itself grants permission to appeal, time will start to run from the notification that the appeal court has granted that permission.
38.	Attention was drawn by Mr Edenborough to note 52.5.6 in volume 1 of the White Book Service 2002 (Spring 2002 Edition), and in particular the fourth sentence of that note. That note contains a misprint which should be drawn to the attention of the editors. It purports to record paragraph 7.7 of the Practice Direction, but it refers mistakenly to the option for service within 21 days after the respondent's notice, instead of following the language of the Practice Direction, which refers to the option for lodging and serving the argument no later than 21 days after the respondent receives the appellant's skeleton argument. An appropriate court officer or a judge of the Court of Appeal may at any time alter the date for the skeleton argument for case management reasons, particularly if an expedited hearing has been directed.
39.	Finally, I would observe that the parties may be given dates by the Civil Appeal Office which are different from those which are set out in this judgment and in the Practice Direction. Such different dates usually stem from a direction given by an appropriate court officer or by a Lord Justice for case management purposes. Alternatively, they may stem from the inability of the Court of Appeal computer system to cope with every possible permutation of events in a particular case. Unless a respondent or his representatives are told something truly remarkable which should put them on enquiry, they should normally be entitled to rely on any date for lodging and serving a skeleton argument of which they are notified by the Civil Appeal Office.
40.	In this judgment I am concerned only with the respondent's skeleton argument prepared for the purpose of the substantive appeal hearing. If a respondent wishes to submit written submissions to a court which is considering whether to grant permission to appeal in the form of a skeleton argument, or wishes to appear at such a hearing, then, in the absence of any special direction by the court, he must do his best to ensure that any skeleton argument is filed and served within a reasonable time before the hearing. Experience has shown that if a skeleton argument is served late it loses much of its value.
41.	LORD JUSTICE PETER GIBSON : I agree with the further observations made by my Lord.
	Order: Appeal allowed with costs here and below.