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B e f o r e :
LORD JUSTICE KITCHIN
SIR ROBIN JACOB
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for the Appellants/Defendants
Mr Martin Howe QC and Mr Henry Ward (instructed by Charles Russell LLP)
for the Claimant/Respondent
Original hearing dates: 22nd and 23rd November 2011
Crown Copyright ©
Sir Robin Jacob:
(i) Those of the main trial before Floyd J up to and including his first judgment,  EWHC (Pat) 418;
(ii) Those of the costs before Floyd J following that judgment;
(iii) The costs in the Court of Appeal leading to the remittal to Floyd J of closely defined issues ("the remitted issues");
(iv) The costs of the remitted issues trial before Floyd J;
(v) The costs of the appeal.
"Costs of Patent proceedings and the CPR
24. In respect of all intellectual property matters the general rule is that the CPR and associated practice directions apply, unless a rule in Part 63 or its practice direction provides otherwise (CPR 63.2). There is no such rule. So, subject to the two statutory provisions discussed above, the general rules apply as much to patent actions as to any other action.
25. It follows that all the factors and matters set forth in CPR 44.3 apply to how the court should exercise its discretion as to costs. Prior to the CPR a party who was successful overall was not normally deprived of its costs of an issue it took unsuccessfully unless it has done so unreasonably, see Re Elgindata (No. 2)  1 WLR 1207. But since the CPR a more issue-by-issue approach is appropriate, see Summit Property v Pitmans  EWCA Civ 2020, applied in a patent action, Stena v Irish Ferries  EWCA Civ 214. Even before the CPR an issue-by-issue approach was, as an exception to the Elgindata approach, applied in patent actions because of the "large number of issues and the very extensive costs that can be incurred" per Aldous LJ in Rediffusion v Singer Link  FSR 369 at 410.
26. An issue-by-issue approach is therefore one that should be applied so far as it reasonably can. On the other hand such an approach is not the be-all and end-all. Whether or not "it was reasonable for a party to raise, pursue or contest a particular allegation" remains a relevant factor to be taken into account as part of the conduct of the parties (see CPR 44 rule (3)(a) and (5)(b).
The impossibility of great precision
27. Before turning to this particular case I should say something about this. Although an issue-by-issue approach is likely to produce a "fairer" answer and is likely to make parties consider carefully before advancing or disputing a particular issue, it should not be thought that it is capable of achieving a "precise" answer. The estimation of costs, like that of valuation of property, is more of an art than a science. True it is that one can measure certain things (such as pages of witness statements or transcript devoted to a particular issue) but they can only be indicia to be taken into account. It would be dangerous to rely upon them as absolutes. Indeed brevity of a document, or a cross-examination, may be the result of great care: was it Hazlitt who apologised for the length of a letter, excusing himself on the grounds that he had not enough time to compose it?
28. It follows that there is no "precise" figure of costs which, in theory with perfect measurement tools, one could reach. The best that can be achieved is an estimate which is necessarily going to be somewhat crude".
"The correct approach is to ask oneself three questions. First of all, who has won; secondly has the party that has won lost on an issue which is suitably circumscribed to deprive that party of the costs of that issue and, thirdly, is the case a suitably exceptional one to justify making a costs order on that issue against the party who has won overall."
The costs of the main trial, the trial of the remitted issues and the costs of the application leading to these (items (i), (iii) and (iv)
(1) that the defendants were overall winners;
(2) the considerable number of points in respect of which they lost, including the remitted issues (a large amount); various non-infringement issues, various prior art citations which failed and the other matters in Mr Howe's list;
(3) the unnecessarily large number of points which were taken;
(4) the fact that the defendants were trying to defend themselves (which may mean more favourable treatment, see Erica-Brookes v HSBC Bank  EWCA 354;
(5) the fact that Floyd J reduced MMI's cost recovery at the main trial to 90% by reason of the wasteful evidence of a Mr Slatter;
(6) the fact that the defendant Mr Timson gave unsatisfactory evidence in the remitted issues trial.
The costs following the main judgment
The costs of the appeal