WOL (London) LLP v Croydon Investments Limited & Ors (Costs)
[2024] EWHC 485 (TCC)
Dr Vanessa Hill v Touchlight Genetics Limited & Ors
10 July 2024
[2024] EWHC 1913 (Pat)
High Court
A company tried to add new claims to a patent lawsuit but gave up after a long hearing. The judge made the company pay all the other side's legal fees, but not the extra high fees sometimes awarded for particularly bad behaviour. A partial payment of those fees was immediately ordered.
Key Facts
- •Claimant sought permission to amend Particulars of Claim in a patent entitlement action.
- •Amendment included three new causes of action (breach of fiduciary duty, breach of confidence, breach of implied term) and 49 overseas patents.
- •Application was withdrawn before judgment, after a two-day hearing.
- •Defendants opposed amendment on procedural and merits grounds.
- •Dispute centered on costs of resisting the amendment application.
- •Claimant argued for cost reduction due to defendants' allegedly prejudicial conduct in serving a lengthy skeleton argument late.
- •Defendants sought full costs, including indemnity costs.
Legal Principles
Costs are in the court's discretion, pursuing the overriding objective of CPR 1.1 to achieve a just outcome.
Section 51 of the Senior Courts Act 1981; CPR r.44.2(1); Kupeli & ors v Kibris Turk Hava Yollan Sirketi [2019] 1 WLR 1235 (CA)
General rule is the unsuccessful party pays costs, but this is a rebuttable presumption.
CPR r.44.2(2); Kupeli at [6]
Court considers all circumstances, including party conduct, when deciding costs.
CPR r.44.2(4), (5)(b)
Indemnity costs are awarded when conduct is outside the norm, unreasonably pursuing allegations.
Euroption Strategic Fund Ltd v Skandinaviska Euskilda Banken AB [2012] EWHC 749 (Comm); Whaleys (Bradford) Ltd v Bennett and Cubitt [2017] 6 Costs LR 1241
Abandoning a claim without explanation may justify indemnity costs.
Hosking v Apax Partners LLP [2019] 1 WLR 3347
For indemnity costs, conduct must be 'unreasonable to a high degree'.
Thakkar v Mican [2024] EWCA Civ 552 at [19(c)]
Applicant for amendment must show new claims are more than arguable, pleading is coherent, and supported by evidence.
Kawasaki Kisen Kaisha v James Kemball Ltd [2021] EWCA Civ 33 at [18]
Outcomes
Defendants awarded full costs on the standard basis.
Claimant pursued amendment, then withdrew after a two-day hearing, wasting court and defendant time. Claimant's arguments regarding procedural unfairness due to late service of the defendant's skeleton argument were rejected.
Application for indemnity costs rejected.
While claimant's conduct was misguided and led to concessions at the hearing, it was not 'highly unreasonable' enough to justify indemnity costs. The court avoided commenting on the merits of the withdrawn claims.
Payment on account of 65% of defendants’ costs ordered.
Acknowledging potential reductions on detailed assessment, considering the standard basis cost order.
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