IP disclosure: an object lesson in costly errors

A large payout for wasted costs in Cabo Concepts v MGA Entertainment offers important warnings for those involved in disclosure exercises in UK litigation, writes David Fyfield of Mewburn Ellis.

In a dispute between UK start-up Cabo Concepts and toy business MGA Entertainment, significant errors in the conduct of the disclosure process by MGA have resulted in a two-year delay to trial and a substantial award of wasted costs.

The underlying dispute concerns a claim brought by Cabo against MGA in respect of alleged breaches of statutory duties, including abuse of a dominant position and making unjustified threats of patent infringement. Cabo alleges that MGA engaged in an anti-competitive campaign to hinder Cabo’s launch of a range of collectable toys, which it said was likely to compete with MGA’s LOL Surprise! range.

The civil litigation rules of England and Wales require that the parties identify and disclose to each other documents in their possession or control that they wish to rely on, and those that adversely affect their own case, adversely affect another party’s case, or support another party’s case (unless they are subject to privilege).