New exam question: You are a lawyer and litigator with Bon Gens and Noscavenger LLP (Noscavenger LLP). You have a client that is in need of your help. You help them in an application for an injunction to prevent a thieving competitor toy company from using a trademark belonging to the client; a trademark for toys called the "Squid(TM)" toy. The toy is made out of material that is similar to silly putty and can stick to walls but it is made in the shape of a squid or octopus.

 New exam question:  

You are a lawyer and litigator with Bon Gens and Noscavenger LLP (Noscavenger LLP).  You have a client that is in need of your help.   You help them in an application for an injunction to prevent a thieving competitor toy company from using a trademark belonging to the client; a trademark for toys called the "Squid(TM)" toy.   The toy is made out of material that is similar to silly putty and can stick to walls but it is made in the shape of a squid or octopus.  

 

PART III-THE ISSUES

The issues are as follows:

6

There is no doubt as to the ownership of the Trademark Squid™.

The first issue is damages for infringement of the Trademark.  The application was successful, preventing the use of the trademark.  The Law Firm completed the work on a partial cost and fee basis with the remainder of fees to be paid as a contingency fee.  The fee is considered property in law and the firm is entitled to full recovery of the same.   

There was a  putative contract as evidenced in the exchange of emails between the parties to confirm there is a meeting of the minds between the parties as consenting adults for the completion of legal work on a contingency fee basis. It is not only putative but the actual contract is read and reviewed by the Squid Company and its CAG board.  They receive a copy by email and in person.   

PART IV-LAW

21. On the facts before the court, there is no dispute as to the ownership of the contingency fee belongs to Noscavenger LLP.   As property, the contingency fee is subject to statutory protection in the event of misappropriation, fraud or any unauthorised use contrary to the interests of the owner. Allowing continued, unauthorised  non payment would be unjust.

Scandecor Developments AB v. Scandecor Marketing AV and Others and One Other

Action [2001] UKHL 21 (4th April, 2001) at paragraph 16-22.

The contingency fee is property. 

Misappropriation of property belonging to another knowingly and deliberately is a criminal act and a fraud.

R. v. Huk, 2009 ONCJ 242 (CanLII)

Almecon Industries Ltd. v. Anchortek Ltd., 2004 FC 172 (CanLII)

Di Manno Estate v. Valenzisi, 2007 CanLII 57463 (ON S.C.)

R. v. Waddell, 2005 CanLII 4925 (MB P.C.)

23. In civil matters, the court will not lend its assistance to individuals involved in the

misappropriation of property who assert a right to a licence to use the same.

Cleaver v. Mutual Reserve Fund Life Association, [1892] 1 Q.B. 147 at 156

Fry, L.J., said:

It appears to me that no system of jurisprudence can with reason include amongst the rights which

it enforces rights directly resulting to the person asserting them from the crime of that

person....This principle of public policy, like all such principles, must be applied to all cases to

which it can be applied without reference to the particular character of the right asserted or the

form of its assertion.

There is a valid and non-voidable contract between the parties for work to be completed and so it was completed successfully with drafting, service and filing on time. The contingency fee is an incorporated term of the contract.

There is valid consideration between the parties but failing to pay the contingency fee on the damages award granted to the parties is a scavenging breach of contract.   

Scotsburn Co-Op. Services v. W.T. Goodwin Ltd., [1985] 1 S.C.R. 54

26. Consideration moves from the promisee to the promisor. 

Carlill v Carbolic Smoke Ball Company [1892] EWCA Civ 1

27. A contingency fee is a valuable piece of property. It is evidence of the owner’s interest in the quality

of his creations and ownership of a percentage fee of the damages recouped from his work as Legal Counsel, Litigator or Barrister.  He will be interested in maintaining its value. It is in the owner’s

interest to protect it and obtain payment of that fee once the damage award is handed down by the Court as based on his service before the Court.  

Scandecor Developments AB v. Scandecor Marketing AV and Others and One Other Action [2001] UKHL

21 (4th April, 2001) at paragraph 16-22.

28. Protection for property is afforded by rule of law in Judeo-Christian societies.

“Once the law recognises something as property, the law should extend a proprietary remedy to

protect it.”

Douglas & Ors v. Hello! Ltd & Ors [2007] UKHL 21 (02 May 2007) at paragraph 310.

29. For a statutory infringement of contingency fee  the owner is entitled to protection and damages

pursuant to Federal laws.

30. IT IS SUBMITTED that the Applicant is entitled to an award of damages and elects to receive the

same in the amount to $1,500,000.00 for general damages and exemplary and punitive damages of

$890,000.00

3925928 Manitoba Ltd. v. 101029530 Saskatchewan Ltd., 2005 FC 1465

31. IT IS SUBMITTED that you cannot rob someone of a right to statutory protection for property

rights under a fraudulent contract if in fact, the intent proves to be a fraudulent intent to obtain legal services by deception which is a criminal fraud and a breach o contract for which general damages can be awarded.  

To  answer this question, please discuss the law of contract in general in this scenario where there is a written agreement and an oral agreement with the work completed as agreed with the documents exchanged by the parties for the completion of the work. IS there a meeting of the minds as to payment of the fees for the work; including the % fee of the damages award.