05.02.2016Global Flood Defence Systems Ltd.; UK Flood Barriers Ltd. v Johan Van Den Noort Beheer BV; Van Den Noort; Flood Control International Ltd.  EWHC 189 (IPEC)
Key areas: patents; costs capping; Patents Court
This was a ruling on costs caps in relation to patent claims.
The main proceedings concerned 3 issues: whether the Defendants had made “groundless threats” of infringement; misrepresentation; and a counter-claim for royalties. The “threats” claim had previously been adjourned, while the Defendants had both won their counter-claims and defeated the Claimants’ claim.
The Defendants sought their costs, subject to the cap. The Claimant submitted they should be postponed until the “threats” claim had been determined.
The Claimants submitted that until the “threats” claim had been determined, it was not possible to say who had won. The Defendants submitted that its costs related to separate issues; the Claimants submitted that the caselaw the Defendants relied on related to preliminary issues.
The Court agreed with the Claimants, and so adjourned a ruling on the Defendants costs.
04.02.2016Jockey Club Racecourse Ltd. v Willmott Dixon Construction Ltd.  EWHC 167 (TCC)
Key areas: Basis of assessment; Indemnity Basis; Part 36 offer; liability offers; High Court
This was a ruling on costs issues arising from a CMC.
The case (a dispute over repairs to a roof) involved a split, liability-only trial, which went in the Claimant’s favour. The Claimant had made a Part 36 offer to settle liability on a 95% basis in its favour, and so it had beaten its own offer at trial. The Claimant than issued an application for costs of the liability issue to be determined on the Indemnity Basis, and the CMC was listed to determine this issue.
The Defendant submitted that the offer was not a valid Part 36 offer; that it was made before the claim was fully-pleaded; and that the Claimant only beat it if 95% of the roof needed to be replaced.
The second argument was dismissed as the offer only related to liability, not quantum; while the third argument was dismissed because the offer referred to “damages to be assessed”.
The Court held that there was a valid offer and, as the outcome could only have ever been entirely in one party’s favour or the other, it was a genuine attempt to settle.
However, the offer was made before the Claimant served its Amended Particulars of Claim, at which point the Defendant should have been fully aware of the size of the case it was facing. In the circumstances, the Court held that it was only fair to award Indemnity Basis costs from 4 months after the offer was made.
03.02.2016Sugar Hut Group Ltd. & Ors v A J Insurance Service (A Partnership)  EWCA Civ 46
Key areas: both parties win some issues; Court of Appeal
This was an appeal against an order for costs.
The parties had agreed to split liability 65:35 in the Claimants’ favour. The court dealt with the damages aspect, which resulted in an overall payment of £1,090,021.02, including interest. Both parties had failed to beat their own Part 36 offers.
At first-instance, the Court held that the Claimants should receive 70% of their quantum-costs up to 13th June 2014, to take into account issues that the Claimants lost, and from that point they were only entitled to costs relating to interest. The Defendant was awarded its non-interest costs from 14th June 2014. All orders were made on the Standard Basis.
The Claimants appealed the on costs relating to interest and award of the Defendant’s costs, and submitted that the Judge had effectively held that the Defendant had beat its own Part 36 offer. The Court held that the Judge’s ruling was incorrect.
As a result, the appeal was allowed with the Claimants being entitled to 70% of their costs throughout, and the Defendant not being entitled to any costs.
Thomas Legal Costs
12 Token House Yard
DX 138752 CHEAPSIDE
18 Park Street
T: 020 7073 2600
F: 020 7073 2955