England and Wales Patents County Court

IN THE PATENTS COUNTY COURT

		Rolls Building 7 Rolls Buildings Fetter Lane London EC4A 1NL
		16th April 2013

Judge Birss :

1. This judgment deals with a point on costs which arose following my main judgment in this case which was handed down on 28^th March ([2013] EWPCC 17). The case is described in that judgment. The representation before me is the same. The point relates to the application of the cost caps in the costs regime in the Patents County Court.
2. This action began in the High Court and was transferred to the PCC. A case management conference was held following transfer. At the CMC directions were given for the matter to be tried. The action is a contract claim but raises points of trade mark law. The only relief sought is damages. The trial was to deal with all issues, in other words with the questions of whether the defendant SOS had breached the relevant contract and with the assessment of damages. Following the judgment I decided to award the claimant 80% of its costs. The costs will be summarily assessed. The claimant's Statement of Costs dealt with costs incurred in the High Court and separately with costs in the PCC. As is now the norm in the PCC, the statement dealing with costs in the PCC broke those costs down into the stages which are set out in the Tables provided for in Section 25C of the Costs Practice Direction (CPR Part 45). This section, along with Section VII of CPR Part 45, sets out the special costs regime applicable in the PCC. CPR r45.42(3) provides that the maximum amount of scale costs that the court will award for each stage of the claim is set out in the Costs Practice Direction.
3. Rule 45.42(1) provides that subject to an irrelevant exception the court will not order a party to pay total costs of more than (a) £50,000 on the final determination of a claim in relation to liability and (b) £25,000 on an inquiry as to damages or account of profits. In a corresponding fashion paragraphs 25C.1 to 25C.3 of the Practice Direction provide for two tables. Table A sets out the scale costs for each stage of a claim up to determination of liability and Table B sets out the scale costs for each stage of an inquiry as to damages or account of profits. The limits in Table B are either the same as or less generous than the broadly corresponding stages in Table A.
4. The claimant contended that it was entitled to recover costs capped overall at £50,000 plus £25,000, and, in terms of stage limits, to both the costs in Table A plus the costs in Table B. This was on the basis that the trial of this action included both a determination of liability and a decision as to quantum. In order to deal with the tables, the claimant's statement of costs apportioned costs of the various stages between the two tables. On the basis of the stage limits claimed, the claimant's approach would produce a final costs figure of £62,250 (£39,750 from Table A plus £22,500 from Table B). Mr Pritchard submitted this was the right approach because the trial had dealt with both liability and quantum.
5. Mr Campbell for the defendant submitted this was not the right approach. He said the caps in the rules contemplated separate proceedings. In this case there had been one single proceeding and there should be a single cap applicable.
6. I accept Mr Campbell's submission. A party is not supposed to aggregate two costs caps together, neither from the point of view of r45.42(1) nor from the point of view of Tables A and B. This case was conducted as a single proceeding, with one set of statements of case, one CMC, one set of witness statements and one trial. One cap should apply. Plainly the correct cap to apply is the one applicable to a trial on liability, with an overall cap of £50,000 and stage limits in Table A.
7. The fact that damages were assessed at the same trial which dealt with the question of whether the defendant was liable to the claimant at all does not mean that both caps can be applied together. It is not uncommon for sums by way of damages to be assessed at a liability trial in the PCC especially in smaller cases. It would be bizarre if that meant that the overall costs cap was then to be £75,000 instead of £50,000 and that both Tables A and B were to apply in such a case. That is not the correct interpretation of the rules. I reject the claimant's submission in this case.
8. When the directions were given at the CMC, if the claimant had wished to contend that the issues should be divided so that the case was determined as a trial on liability, subject to Table A, and a separate inquiry as to damages, subject to Table B, then that could and should have been raised. It could have been taken into account in deciding whether to order a single trial or not. It was not and in my judgment this action went ahead as one proceeding to which one cap applies.
9. There will no need to attend the handing down of this judgment.