England and Wales Patents County Court

IN THE PATENTS COUNTY COURT

		Rolls Building 7 Rolls Buildings London EC4A 1NL
		14/12/11

His Honour Judge Birss QC :

1. This judgment deals with the costs thrown away by the adjournment of the trial in this matter. The circumstances in which it arises are set out fully in my judgment dated 24^th October 2011 [2011] EWPCC 33. I will not repeat them.
2. On that occasion I ordered that claimant's costs thrown away by the adjournment would be paid by the Activ8 defendants and directed that I would summarily assess those costs in writing. Directions were given for written submissions. I received written submissions from the claimant including a statement of costs and a witness statement of Mark Daniels of Browne Jacobson. I received submissions in reply on behalf of the first and fourth defendants (signed by Paul Andrews) with various annexes and I received submissions in response from the claimant (with further annexes).
3. Having been adjourned, the trial has now been re-fixed. It will be heard in March 2012.
4. In this judgment "the defendants" means the Activ8 defendants, i.e. the first and fourth defendants.
5. The issues raised in the submissions are these. First the defendants seek to justify the events which led to the adjournment. Second the defendants argue that their current financial status is poor and they ask to defer the costs until the trial in March. Third the defendants make submissions about the amount of costs claimed by the claimant.
6. As regards the first point. The defendants appear to be seeking to reopen the questions decided in my judgment on 24^th October 2011 that the defendants should bear the costs thrown away by the adjournment. There is no good reason why I should do so and I decline to reopen that judgment.
7. As regards the second point, the defendants have produced no evidence to back up their contention about finances. To some extent this also is an attempt to re-argue the issues on 24^th October 2011. The reason for summarily assessing the costs thrown away was so that an order for their payment could be made now and in advance of the adjourned trial. The question of the defendants' financial status has been debated before in this litigation and the defendants know that if they wish to make the point they need proper evidence. There is none before me. The order I will make will be an order that the sum I will assess be paid within 21 days.
8. That leaves the third point, the summary assessment of the costs themselves. The total costs claimed by the claimant are £64,369.11. (This is a case to which the costs cap does not apply.) The Statement of Costs and Mr Daniels' witness statement explain that figure and how it has been arrived at. It represents the costs which have been wasted as a consequence of the adjournment. They are not so called "wasted costs" with the special meaning that term has in the CPR. However it is an entirely accurate description of them.
9. The defendants take a number of points. I will deal with them in turn.
10. The defendants submit these costs are, in general terms, very high. This is not the first time in this litigation that evidence served far too late has caused an adjournment. The same thing happened in January 2011 and that time the claimant was late and those costs were taken into account in the award made to the claimant in relation to the preliminary issue. The costs thrown away by that adjournment (of the preliminary issue) were £10,000. In my judgment the circumstances are too different for this to be a relevant comparison. The trial that has been adjourned was the full patent validity and infringement case and was more complicated than the preliminary issue. The new material here has rendered irrelevant a proportion of the work the claimant's advisers had done for the trial. That did not happen in January. In the end the question of what the costs actually are is to be assessed as a matter of fact.
11. The claimant has identified a number of categories of costs thrown away. The defendants made submissions on them. The categories and the issues arising are:

i) Timetable and trial arrangements. The time spent on this has clearly been wasted and the defendants did not dissent from that.

ii) Skeleton arguments. The claimant had to prepare a housekeeping skeleton which is now redundant. The defendants accept that part of that skeleton will need to be thrown away. In my judgment all those costs have been wasted. The claimant also says that a large proportion of its main skeleton for trial will now be redundant. The defendants disagree but in my judgment they are unrealistic in this. The adjourned trial will have significant new evidence in it on the Phantasialand issue. That is why it had to be adjourned. A substantial part of the claimant's case in their old trial skeleton now needs to be redone.

iii) Trial bundles. The bundles will need to be updated and some time spent preparing the bundles before has been wasted. The defendants do not accept the bundles will be thrown away. They are right but that is not the point the claimant makes.

iv) Witness statements. The claimant's solicitors had to work hard shortly before trial to prepare additional witness statements at short notice dealing with the very late disclosure from the defendants in attempting to hold onto the trial date. That work has been made redundant by the adjournment since further evidence will be needed to address the new material properly. The defendants do not agree. They argue that all the evidence will still be appropriate. It seems to me that that misses the point. The claimant is not claiming all the evidence costs. The claimant had to prepare two statements dealing with the partly redacted version of the document which has now been provided in unredacted form. The cost of that work is a cost thrown away.

v) Trial attendance and preparation. The claimant claims various costs of attending to start the trial on 24^th October. The defendants accept some of those costs have been wasted but they point out that a claim is made for a Dr Schubert – for whom the claimant did not have permission to give evidence. However the claimant was going to seek to have him admitted to deal with the late evidence and his evidence will now be admitted at the adjourned trial. It seems to me that his attendance in October was reasonable in the circumstances from the claimant's point of view and therefore those costs have been thrown away.

vi) Counsel's brief free. The claimant will have to incur new fees for counsel in respect of the new trial. That is undeniable. The defendants ask the court to assess this request. I will do so.

12. I have rejected the points of principle taken by the defendants in relation to the claimant's costs bill. That does not mean that I should simply assess the costs in the sum claimed by the claimant.
13. Taking the solicitors' costs first, the total is £34,035.70. The hourly rates are reasonable. The time spent broken down in the statement of costs appear to me to be broadly reasonable although the time spent attending on counsel is a little high. The one section I am concerned about in detail is the work on documents. Rounded in whole hours, the major time on documents is 32 hrs for the partner (Grade A), 56 hours for an associate (Grade C) and 36 hours for a junior fee earner (Grade D). That accounts for about £21,000 of the costs thrown away (about £10,000 for the partner, £8,000 Grade C and £3,000 Grade D). In my judgment it is too much time. I will allow £2,000 for the partner, £5,000 for Grade C and £2,000 Grade D. That gives a total of £9,000. For the remainder of the solicitors costs, bearing in mind the time attending counsel, a reasonable sum is £12,000. That gives a total for the solicitors costs of £21,000.
14. The total disbursements are £25,326.80. This is mostly counsel's fee of £22,500. As to this Mr Daniels explains that the brief fee was £25,000 for 9 days preparation and 1 day attendance in court (making 10 days). It is likely that counsel will still have to carry out 8 days of preparation before the trial in March (making a total of 9 days). So he estimates 9/10ths of the brief fee represents costs thrown away. I do not accept the logic is that simple. Moreover I would be surprised if a full 8 days preparation were required in March in this case, counsel having done 9 days preparation in October. In my judgment a fair figure for the portion of the brief fee thrown away in this case is £17,000. That is about two thirds. Thus the figure for disbursements will be £19,826.80.
15. The costs thrown away in relation to Dr Schubert (£4,352.47) and the other witness Mr Finney (£654.09) are reasonable and will be included.
16. These figures produce a total of £45,833.36. Looking at the matter overall, although that is still a relatively high sum for a case in the Patents County Court albeit not one to which the costs cap applies, it seems to me that the total is within the bounds of what would be reasonable in the circumstances of this case.
17. I assess the costs thrown away by the adjournment in the sum of £45,833.36. They are to be paid within 21 days.