IN THE PATENTS COUNTY COURT                             Claim  No.  PAT 06023                                                                        
Before: His Honour Judge Fysh QC

B E T W E E N:

ANGLIA AUTOFLOW LIMITED     Claimant

and

WRIGHTFIELD LIMITED           Defendant

JUDGMENT ON COSTS

Guy Hollingworth instructed by Lovells appeared for the Claimants. Michael Hicks instructed by Kester Cunningham John, Norwich appeared for the Defendants.

11 and 12 June 2008

This judgment is in final form. I direct that pursuant to CPR PD 39A no official shorthand note shall be taken of this judgment and that copies of this version as handed down may be treated as authentic.

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Judgment

Introduction

1.	This is a costs judgment in a copyright infringement action which came unravelled in three stages and was finally abandoned by the claimants on 6 June 2008 - after 18 days of trial. A dispute has now arisen as to who is to pay the costs (which are substantial) for what has happened.

2.	The general rule is of course that a claimant is responsible for the defendant’s costs up to the date when the notice of discontinuance is served: CPR r.38.6(1). However, in this case the claimants Anglia Autoflow Ltd (‘Anglia’), argue that a substantial deduction should be made from such liability in view of what they say has been the defendant’s unreasonable behaviour at all stages (particularly the last)  in its conduct of this litigation. Counsel for Anglia , Mr Guy Hollingworth, recognised that the burden was on him to persuade the court to depart from the usual order. My attention was drawn to a number of authorities on this topic including In re: Walker Wingsail Systems plc [2005] EWCA 247 and Hunt v Hunt [2005] EWHC 3525 (Ch) to show that a departure from the normal order as to costs may be justified in circumstances where a defendant’s conduct in the litigation has been, for want of a better term, less than what might be expected.

3.	For their part, the defendants, Wrightfield Ltd (‘Wrightfield’), argue that this is an action which should neither have been brought nor pursued and have therefore asked for their entire costs – and on the indemnity basis.

4.	The joint costs of the parties (ex-VAT) now stand just short of £1 million. By contrast, Wrightfield’s invoice for the allegedly infringing computer programme which sparked off this litigation was for under £10,000.  I shall evidently have to go into the circumstances of the case and of its abandonment in some detail.

5.	The Notice of Discontinuance is dated 10 June 2008 and is stated to be in respect of the entire action.

6.	There are thus two matters for consideration: Anglia’s case for a reduction in the costs payable to Wrightfield in the light of Wrightfield’s conduct and Wrightfield’s bid for full costs on the indemnity basis in the light of whether this action should ever have been brought and/or pursued. The facts which are germane to each submission are not necessarily identical but in this case there is considerable overlap. In what has been a lengthy and complex case I have not attempted to separate the facts relevant to each issue but have rather tended to pick up only those matters which I think need to be taken into account in reaching a just decision overall.

7.	There are in fact matters on both sides which need to be taken into account.

The litigation and the parties

8.	The copyright work subject of this claim was a custom-written version of a computer programme known as the Easyload Control Software Program (‘the Easyload programme’). By the time of the trial, there was no issue as to the originality, subsistence, and ownership of the copyright work - which is the property of Anglia.

9.	Proceedings for copyright infringement were commenced on 28 March 2006. The version of the Easyload programme in issue was used to control the initial handling of live chicken  in one of the  poultry processing plants owned by the Faccenda Group Ltd (‘Faccenda’) at Okeford Fitzpaine (‘Okeford’) in Dorset. At the heart of such  plants is a type of computer known as a PLC wherein a  custom-written  programme is used to automate and precision-control the complex sequence of operation of the machinery in the plant. The event which caused this dispute was the successful bid by Wrightfield, for whom Mr Michael Hicks appeared, over that of Anglia, to upgrade the relevant part of Faccenda’s plant at Okeford.

10.	This upgrade was designed and put into operation by two employees of Wrightfield, a Mr Darren Corbyn (who wrote the programme referred to hereafter as ‘the Wrightfield programme’) and a Mr Allan Jones. Both Mr Corbyn and Mr Jones gave evidence for Wrightfield  and I shall have to refer to them again in this judgment, particularly to Mr Corbyn. The upgrade was in fact carried out and the system was tested between 6 and 13 October 2005. Of some importance is the fact that both Mr Corbyn and Mr Jones were ex-employees of Anglia. They had thereby become thoroughly familiar with both the machinery and its operation in other chicken processing plants whose PLCs were operated by different versions of the Easyload programme, well before the events in issue.

11.	Both Anglia and Wrightfield have overlapping interests in the food processing field and see themselves as direct competitors. Anglia was founded before Wrightfield  and is the larger organisation altogether. The main witness of fact for Anglia was the son of its founder, a Mr Robert Wills, who was familiar with programming of this kind and with the Easyload programmes in particular. He and Mr David  Sykes, Anglia’s independent expert, were jointly responsible for an important technical document entitled ‘Confidential Points of Similarity’ which was used extensively by both sides in cross-examination in connection with the comparison of the operational steps (and their sequence) in the litigants’ programmes . 

12.	Mr Wills’ evidence about the Easyload and Wrightfield programmes was the target of criticism by Mr Hicks as being that of a second expert in disguise and thus inadmissible under the terms of the order made at the case management conference. I nonetheless allowed him to give evidence regarding the comparison between the Easyload and Wrightfield programmes at an early stage of the trial.  This may have been a mistake. Mr Wills was in my view, an unsatisfactory witness who proved to be a stubborn champion of Anglia’s cause, refusing even to abandon points which his solicitors, Lovells, had advised by letter would no longer be pursued.  

The evolution of Wrightfield’s programme: two ‘lost’ laptops.

13.	Wrightfield have consistently denied infringement and have asserted independent creation of their programme. The Wrightfield programme, according to its author, Mr Corbyn, underwent an evolutionary process (in ‘versions’) during its creation. The version installed at Okeford was known as Version 3.4.  A further (and final) refinement of this version (Version 3.5) was created and installed at Okeford some months after Version 3.4 in response to Faccenda’s needs. Not surprisingly, Anglia were most concerned to examine the contents of the hard drive of the laptop upon which Mr Corbyn carried out all his development work. 

14.	There was a good deal of evidence about the chequered life of this laptop. According to Mr Corbyn, it ‘died’ on 10 February 2006 that is, some three months after the completion of the Okeford installation.  When this happened, this computer contained (inter alia) only the last two versions of the Wrightfield programme, i.e. Versions 3.4 and 3.5. The laptop was thereupon taken to Wrightfield’s local computer ‘doctor’, Strident Computers (‘Strident’), for possible revival but Mr Corbyn was told by them that  it had indeed ‘died’ and was of no further use. Strident made three CD’s of its contents. Anglia were initially told that, as a result of its ‘death’, Mr Corbyn’s laptop had been ‘thrown away’ and, as far as Anglia was concerned,  that was still their understanding when disclosure was given on 17 April 2007. Disclosure on that date did not contain any material relating to earlier versions of the Wrightfield programme even though in November 2006, Anglia had been informed by Wrightfield’s solicitors that its clients were in possession of earlier versions: 24/1/195. This statement was later corrected but  the incident made Anglia suspicious.

15.	Oddly enough, Mr Corbyn’s laptop had never been thrown away. Shortly before the original date fixed for trial, in May 2007 in fact, it was unexpectedly found by a Mrs Fairclough, a Wrightfield employee, underneath a collection of suspension files in her office. Like Mr Hollingworth, I found the evidence regarding this event as being rather thin. There then followed a period of considerable inter partes activity which culminated in Mr Corbyn’s laptop being sent to a specialist forensic laboratory, Kroll Ontrack (‘Kroll’)  of Farringdon Road, London EC1 for the extraction and analysis of the contents of its hard drive. The final outcome of this laboratory work and its interpretation became available only during the trial itself - as such work takes a long time, it seems. The outcome of this investigation was on balance, neutral. Mr Sykes gave some short-lived evidence of his belief that a ‘wiping programme’ of some sort had been applied to the hard drive and references to earlier versions of the Wrightfield programme were indeed found - but little more. The process did however yield some dates which were perhaps, marginally relevant. The Kroll exercise further fuelled Anglia’s suspicion of deliberate concealment. 

16.	These are matters which I shall of course take into account on this costs enquiry but, said Mr Hollingworth, they are certainly not the most important matter.

17.	As Mr Hollingworth pointed out, we now know that Mr Allan Jones’ computer was all this while in Wrightfield’s possession and was being used it seems, by an apprentice. As Mr Jones was the only other person to have worked on the Okeford project, Mr Hollingworth found it astonishing that his laptop had not been located and examined by the time of disclosure viz 17 April 2007. I agree and will return to the late appearance of the  Jones laptop (and the discovery on it of the Wrightfield Version 2.0 or 2.1).  

18.	From the costs point of view, perhaps the most significant of the technical  difficulties which have bugged this litigation has been the fact that during most of the trial, only the last two versions of the Wrightfield programme have been available for inspection and analysis by Anglia’s technical team, the earlier versions (and notes therefor) having (so Wrightfield  said), been overwittten, erased or simply lost – that is, until Mr Jones’ earlier Version was identified in back-up materials during the last few days of trial. It was following the examination of this earlier Version that Anglia decided to discontinue the action.

Fuelling the fire: Animus and suspicion

19.	One of the factors that has prolonged this litigation (and is thus relevant to the present enquiry), was the degree of personal animus   which manifested itself, particularly between Mr Wills and Mr Corbyn.  This may have arisen because, as Mr Hollingworth frequently reminded me, Mr Corbyn was an electrical engineer and unlike Mr Wills, not a programmer. I have already recorded my views about Mr Wills and will therefore say something about some of the other witnesses of fact.

20.	Mr Corbyn was the person with overall responsibility for the update at the Okeford factory. He said again and again in evidence, that the Wrightfield programme was written by him alone from scratch, an assertion which was initially ridiculed  by Anglia but which, said Mr Hicks,  in the end has been vindicated. In my estimation, Mr Corbyn proved to be technically able and quick to learn. I would nevertheless record that I also received Mr Corbyn’s evidence with caution. He had potentially something to loose and at times, I felt that his evidence suffered from over-enthusiasm and that it lacked objectivity,

21.	 Mr Jones’ role increased in absentia towards the end of the trial in the light of the very late discovery by Mr Corbyn at Wrightfield’s premises of the early back-up materials retained by Mr Jones before he left Wrightfield (the file being identified as ‘in plc 28sep2005’). The  items thus found  were: 

                                    (a) a DVD,
(b) a back-up tape, and 
(c)  Mr Jones’ laptop computer itself now in use by the apprentice.

These items were the last of a number of hares which Wrightfield caused adventitiously to pop out of top hats during the course of this litigation.

22.	Personal animus apart, another factor which drove this case on was the atmosphere of intense suspicion which pervaded it. I have already mentioned this, but let me further illustrate it by again referring to the late disclosure of Mr Jones’ back-up materials.

23.	As a result of what was referred to as Wrightfield’s illegal ‘sucking out and conversion’ of Anglia’s programme at Okeford (to which I shall return), Anglia immediately wrote a letter of complaint to Omron Electronics Ltd of Milton Keynes (‘Omron’), dated 5 October 2005. This letter, which recorded Anglia’s first ground for suspicion that Wrightfield might be infringers, was written only a few days before the Wrightfield programme was due to be installed at Okeford. Anglia assumed (rightly, I think) that the gist of the letter would very soon find its way  to Wrightfield. The present  significance of the incident was succinctly put by Mr Holingworth as follows:

 “Thus, anything disclosed by Wrightfield post-dating 5 October 2005 is ‘tainted’ by the suspicion that it could have been altered – or even created- in response to Anglia’s suspicions. That is why documents pre-dating 5 October are particularly important.”

And those suspicions were what was said to have driven Anglia forward for the rest of the trial - until that is, material pre-dating 5 October was indeed found. What a pity, said Mr Hollingworth, that disclosure of Mr Jones’ back-up   items (which date from 28 September 2005) had not been given earlier. I quite agree.

24.	Wrightfield’s response to this part of Anglia’s argument  was attractive - particularly after the allegation of infringement by Versions 3.4 and 3.5 of the Wrightfield programme had been abandoned (see below). Mr Hicks invited me to dismiss the notion that ‘lowly sparks’ (that is, Mr Corbyn, as Anglia would have him), could overnight have metamorphosed into a programmer of genius, able not only to write an entire programme for a PLC in Omron ladder language (see below) but also having the time to  install and test-run  it  in the substantially upgraded PLC panel at Okeford. I agree that this scenario seems most unlikely – but rightly or wrongly, Anglia’s suspicion remained.

25.	In this context I should also mention another ex-employee, this time a Wrightfield ex-employee: Mr Steven Dennett, now a witness for Anglia. Until his dismissal by Wrightfield for misconduct, Mr Dennett was Wrightfield’s general manager. For present purposes, what is important is that until he left them in July 2007, he was the person in-house in Wrightfield who was solely in charge of this litigation. Blame for any blemishes in the conduct of Wrightfield’s case has been laid by Mr Corbyn squarely at the door of his then superior, Mr Dennett. Mr Hicks has characterised Mr Dennett as a disloyal employee and an unreliable and even malicious witness. I have some sympathy with these submissions. I certainly consider him to be an unreliable, unsatisfactory witness. Moreover, the very day he left Wrightfield he joined Mr Wills on a train to London to make the witness statement for Anglia which is on file. It is to be noted that he and Mr Wills asked me to believe that during the journey to Lovells, they spoke not once about this case.

26.	Finally there is another Anglia witness whom I regard as being unreliable and whose evidence provided for quite some time, Anglia’s  raison d’être as claimants in these proceedings: Mr Christopher Tyrell, Anglia’s project manager. His evidence about the ‘sucking out and conversion’ incident as previously mentioned, was in my assessment, largely concoction. I shall return to this incident below.

27.	Having regard to their effect on the course of this trial, I must also take the questions of animus and suspicion (as I have called them) into account when it comes to costs - not least because they served to lengthen the time for preparation and of the trial itself. I have come to the conclusion however that in the circumstances some degree of blame must fall on each side in this respect; this was not a one way business and it would, I think, be rash to try to apportion blame with accuracy. However, in my judgment, nothing I have so far said compels me to favour an award of costs on the indemnity basis.

Further  matters to be taken into account
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28.	I have so far tried to provide a brief sketch of the issues which required adjudication until the action was abandoned and in addition, some idea of the  compass of the enquiry thrown up by this litigation.
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29.	From the start, the scene was set for a classic copyright infringement confrontation:  a claimant, in the light of the defence of independent design, is compelled  to leave no stone unturned in seeking to demonstrate by way of such indirect evidence as the time taken by the defendant to produce the work complained of, the relative cost of producing it, and so forth, that the defendant indeed copied. There are variants to this: sometimes, in the light of an ex facie similarity between the works in question, the burden shifts to the defendant to show that he did not copy. In other cases, the argument is essentially one of whether a ‘substantial part’ was copied: see CDPA ’88, s 16(3). In this case there was no shifting burden – but the question of ‘substantial part’ did briefly come into focus in relation to Versions 3.04 and 3.05  - but then it faded.

30.	In most copyright infringement actions, the court is able to reach a conclusion on copying without too much difficulty – though under our procedure with its penchant for wide-ranging and elaborate cross-examination, the way may be long and tedious. There may for example be some unexplained engineering dimension or radius of curvature coupled with the opportunity to copy. There may be telltale sprue marks on a defendant’s product originating from the claimant’s mould. And in most cases where the allegation is of infringement of traditional literary, musical and artistic copyright, the matter will be adjudicated by the eye (or ear) of the court in the light of the evidence. But when computer programmes are in issue as literary works (CDPA ’88, s. 3(1)), a different state of affairs arises which is more akin perhaps, to trying to resolve a copyright dispute between two works in a foreign language. Nevertheless, as Jacob J recognised in one of the first reported ‘computer copyright’ cases, Ibcos Computers Ltd v Barclays etc Finance Ltd [1994] RPC 275 at 297-300, with the help of experts it is still possible with reasonable ease, to do what is needed – at least in relation to traditional programming languages. 

31.	In this case however, the programmes were not written in a traditional computer language but in a language called ‘ladder logic’, the structure of which seemed to me at any rate, unlike any other programming languages which I had seen before. In such circumstances, recourse must primarily be had to expert evidence when copying is denied; without expert guidance, one simply cannot begin to read ladder logic. 

32.	To make matters worse, the ladder logic in this case had itself been written in two computer ‘dialects’ or programming codes. Anglia’s original work at Okeford was written for a Mitsubishi PLC whereas as I have mentioned,  that of Wrightfield was written for a rival Omron PLC . 

33.	Language has therefore been another problem in this case. Although only Anglia’s expert evidence was complete at the time of  discontinuance, the process of examining lengthy programmes in ladder logic, often line by line, took a substantial part of the trial time. However, once the action had been launched, this problem of language was I think, inevitable and neither side should be ‘penalised’ in this regard thereafter.

The three degrees of unravelling: An overview

34.	As this is central to Wrightfield’s case as to  why it should have all its costs in the usual way (and moreover, on the indemnity basis), I shall have to say something more about the three degrees of unravelling. They argued that the case was hopeless from the start and indeed at the case management conference invoked the application of the streamline procedure.

35.	First there was the ‘sucking out and conversion’ incident . Evidence that there had been a wrongful ‘translation’ or conversion of the Easyload programme at Okeford  from Mitsubishi to Omron format  was initially  Anglia’s principal plank in proving copying. But in due course it also became the first casualty in its case and, said Mr Hicks, that is when Anglia should have discontinued.
36.	The second part of Anglia’s case to unravel was the abandonment (after a week or so of technical evidence) of infringement by Versions 3.04 and 3.05. Attention was now directed to what might have been in the earlier versions of the Wrightfield programme. 
37.	As noted, the third and fatal undoing of Anglia’s case came about as a result of the examination of Mr Jones’ back-up materials.
38.	I must next look at this unravelling in a little more detail

The first unravelling: The ‘sucking out and conversion’ incident

39.	The importance of this to Anglia’s case was made clear in the pleadings. The relevant part of Anglia’s Further Particulars dated 1 October 2007, which were given voluntarily, reads as follows:

2 (a) The Claimant’s primary case is that the Defendant downloaded or ‘sucked out’ the [Easyload] Program and thereby copied the whole of the Program exactly.

 (b) …alternatively, in creating the first version of the Omron PLC Program… the Defendant copied , translated, adapted, arranged or otherwise altered a substantial part of the Program (either from a hard or soft copy of the Program which had been ‘sucked out’ as aforesaid or from a hard copy of the Program in the possession of the Defendant or Faccenda or from some other source unknown to the Claimant). In support of the foregoing the Claimant relies upon:

(i)…

(ii) the fact that version 1.0 and other earlier versions of the Omron PLC Program have not been disclosed, despite having previously been said to be available by the Defendant 

[Emphasis added]

40.	 There were three players in this incident, which took place at Anglia’s premises on 5 October 2005: Mr Tyrell of Anglia (see above), Mr Paul Simpson of Omron and a Mr Clive Ducker from one of Omron’s distributors. They all gave evidence but Mr Ducker was not cross-examined. Mr Tyrell’s evidence was that Mr Simpson had said to him that Anglia’s Easyload program at Okeford had been ‘sucked out and converted’ for use in the Omron PLC. Mr Simpson absolutely denied that this was ever said. And Mr Ducker had no specific recollection of the matter:

“Although I was at the meeting, I have no recollection of who said what to whom.”

41.	Having heard Messrs Tyrell and Simpson under cross-examination, I had no hesitation in preferring the evidence of Mr Simpson. In fact, I formed the view that Mr Tyrell’s evidence was simply untruthful. I then invited Counsel to my chambers and, believing that it could be helpful,  frankly told them so.

42.	But the matter does not end there. The effectiveness of the allegedly illegitimate ‘sucking’ operation has two technical aspects: ‘sucking out’ and then converting Anglia’s Mitsubishi programme dialect into Omron dialect. There was no dispute that whilst it is not difficult to ‘suck out’ a program from a PLC, it was considerably more difficult to convert it thereafter. Indeed, as I understand it, no serious would-be infringer would bother to ’suck out’ a program and then go to all the trouble of translating it ‘manually’ line by line. It was then suggested by I think, Mr Sykes in cross-examination, that a translation software existed for doing just this. This led to a flurry of activity on both sides, but there is still no evidence that such a program existed in October 2005.

43.	This was obviously an important development but apart from a noticeable downgrade which Mr Hollingworth thereafter accorded to the primacy of the  ‘sucking out’ incident, Anglia ploughed on. In my view, the issue of the non-availability of appropriate conversion software was something which Anglia should have foreseen and investigated before trial if they really wanted to maintain this as the main plank of their infringement case. This, coupled with the outcome of the cross-examination of those involved, was I think, a serious blow to the Anglia case, and one moreover which did not come about as a result of any failure or mistake on Wrightfield’s part. 

The second unravelling: Versions 30.4 and 3.05 are abandoned as infringements.

44.	I can take this shortly. On the 11th day of trial Mr Hollingworth stated that

 “[Anglia] does not contend that a substantial part of its programme is reproduced in versions 3.04 and 3.05” 
            
            This happened after both Mr Wills and Mr Sykes had given their evidence (at length) about the alleged telltale similarities as elaborated mainly in their document ‘Confidential List of Similarities’ to which I have referred. Moreover, by this time, an analysis of the hard drive of Mr Corbyn’s ‘dead’ laptop by Kroll, was (as both sides knew) reaching completion without any result which was of conclusive (let alone incriminating) use to either side. Examination of the hard drive for trace evidence of illicit past usage became in fact a technical and costly mini-trial within the trial. Anglia’s case was I think, in serious difficulty and by now was almost entirely  based on inference (i.e. suspicion) alone.

45.	Mr Hicks correctly pointed out that this development was not reached on the basis of documents which Wrightfield had failed to produce (or even produced late) – or as a result of the analysis of Mr Corbyn’s ‘dead’ laptop. Even if all the similarities in the ‘List of Similarities’ document were present (which they were not) and even if all that had arisen as a result of copying (which none did), Mr Hicks said there was still not enough to have amounted to an infringement, even on the basis of ‘substantial part’. This lack of any cogent telltale similarities should logically have been apparent from the start. 

46.	In my view, the combination of this development coupled with the outcome of the ‘sucking out and conversion’ incident, was a more serious blow to Anglia than they now admit; their case was by  now very weak. In my view Anglia might therefore plausibly have discontinued before they did, without the appearance of Mr Jones’ ‘back-up’ evidence. But Anglia now say that it was the latter alone that had forced them to withdraw.

47.	Anglia cannot in my view qualify for any discount in costs liability so far. 

The third unravelling: Mr Jones’ back-up materials ‘in plc 28sep2005’.

48.	I have already recorded most of the relevant facts. The circumstances under which Mr Jones’ back-up material was found may be briefly stated. The DVD was found by Mr Corbyn on 30 May 2008 in one of the nine drawers of his desk whilst he was looking for another file. In the DVD as well as in the other back-up material there is a sub-folder relating to the Easyload project at Faccenda /Okeford. Mr Corbyn agreed that this material was where one would expect it to be; it was not hidden away in some unexpected place. Moreover the file suffix (‘.cxp’) is the suffix for an Omron programme and the earlier version could I think, have been found in response to a search under ‘Okeford’, ‘Faccenda’, ‘Easyload’ or ’.cxp’. The file name itself, I would have thought, would have been indicative of potentially relevant material for disclosure. 

49.	Wrightfield say that the discovery of the back-up material came to them as a complete surprise but even if I accept their word, that cannot exonerate them from the consequences of  insufficient or inappropriate effort in disclosure at a much earlier stage.

50.	Not surprisingly, Anglia now say that this was the moment of crucial importance to the survival of their case - or otherwise.  They say that had the search which led to the discovery of file ‘in plc 28sep2005’ been carried out earlier (as I think it should have been), the case would certainly have been discontinued earlier. This, they argued, is the most important single issue on both aspects of how the costs of this action should now be borne: see § 6 above. 

51.	Anglia say that Wrightfield never carried out a ‘reasonable’ search for relevant material as required under CPR, Pt 31.7 when disclosure was given on 17 April 2007. They argue that many computer copyright cases have now been  adjudicated and reported and a reasonable search is now well known to cover material recorded electronically in a variety of devices. This late disclosure of matter (which was at all material times within Wrightfield’s control) amounted to culpable fault on the part of Wrightfield and moreover constituted a further fault of the same general kind as those which had arisen earlier and for which Anglia were not responsible. These matters also arose, said Mr Hollingworth, as the result of failure on Wrightfield’s part to take this litigation seriously.

52.	Mr Hicks strongly doubted the proposition that the early disclosure of the ‘in plc 28sep2005’ file would have made any critical difference to what had happened. And he elaborated on that. For example, the work with Kroll on Mr Corbyn’s laptop would have no doubt gone ahead anyway. I agree, but like so many of the ‘incidents’ of litigation upon which one or other of counsel rely, it is most difficult ex post facto accurately to apportion blame to the decisions which were made in the heat of  trial when matters may not have been as clear as they are now.

53.	I nevertheless consider that the ‘in plc 28sep2005’ file materials were a very important item of disclosure which could and should have been found earlier had a ‘reasonable and proportionate’ effort been made on Wrightfield’s part. I therefore agree that some discount should be made in Anglia’s favour from the usual costs order on discontinuing.

Anglia’s other allegations of unreasonable behaviour on Wrightfield’s part.

54.	The late disclosure of the back-up materials was not the only incident upon which Anglia relied in support of their bid for a discount. Appended to their closing skeleton is a 19 page document devoted entirely to what they regard as the equivocal and cavalier conduct of this litigation on Wrightfield’s part. This material in my assessment, ranges from the rather trivial to the more significant. I find it hard to ascribe a reason for some of the events which occurred, whether they were motivated by lack of care, by Mr Dennett’s mixed affiliations or they were merely passes in an inter partes forensic corrida.   For example, in his first witness statement Mr Corbyn made a number of serious and misleading mistakes (which were later corrected) about dates and other matters. Then there is the fluctuating status of the evidence of the pre-3.04 versions of the Wrightfield programme to which I have referred. There was also a repeated assertion on Wrightfield’s part that all electronic documents including Wrightfield’s PC’s laptops and servers had been searched which was no mere formality. And there was also the saga of the laptops.

55.	I would record that Mr Hollingworth drew my attention to an authority on the costs consequence of failure to provide proper, timely disclosure (in particular, the consequences  of late disclosure) which, he said, is presently applicable by analogy: Ford v GKR Construction [2000] 1 WLR 1307. I agree with that submission and have applied it to this decision.

 Conclusion 

56.	I have taken all these factors into account and have concluded that Anglia must pay 80 per cent of Wrightfield’s costs.

Indemnity costs?

57.	Mr Hicks put forward an argument that any costs awarded to Wrightfield should be on the indemnity basis. This case he said, was hopeless and should never have been brought. He drew my attention to CPR Pt 44.4.3 and to Excelsior Commercial etc Ltd  v Salisbury Hammer  [2002] EWCA 879. 

58.	I do not regard this action as litigation which should never have been brought. Intellectual property litigation can seldom reliably be put into such clear focus. And for the reasons already given, I have also absolved Anglia from twenty per cent of their normal liability in costs.  Taking these matters into account I am of the view that the costs should be paid on the standard basis.

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