Costs - Lutec (UK) Ltd v Cascade Holdings Ltd
Intellectual Property Enterprise Court (Mr David Stone) Lutec (UK) Ltd and others v Cascade Holdings Ltd and another (Costs)  EWHC 2259 (IPEC) (13 Aug 2021)In Lutec (UK) Ltd and others v Cascade Holdings Ltd and another  EWHC 1936 (IPEC) (09 July 2021), Mr David Stone found that the defendants had infringed the third claimant's registered designs. I discussed the case in Registered Designs - Lutec (UK) Ltd v Cascade Holdings Ltd on 2 Aug 2021. The learned deputy judge awarded the third claimant its costs, to be assessed if not agreed. The parties were unable to agree on those costs so they asked Mr Stone to assess them.
 The first question will always be the one contemplated by CPR Pt 44.3 (1) (a) – whether costs are payable by one party to another. The usual rules applicable under the CPR apply to that. The general rule is that the unsuccessful party will be ordered to pay the costs of the successful party but the court may make a different order. In some cases an issue based approach and set off may be appropriate just as in the High Court.
 The next matter to address is then the amount of costs, which will be arrived at using the summary assessment procedure. In order to conduct the assessment the party seeking costs will need to provide information about its costs broken down by stages corresponding to the stages in Table A (for a liability trial). In the present case the claimant's solicitors prepared Statements of Costs for each stage and a summary schedule setting out the totals for all the stages. The detail in each Statement needs to be set out somewhere and it is an important formality that the solicitor signs each Statement to confirm its accuracy. I wonder if it might be possible to prepare a single Statement of Costs setting out each stage without doing too much violence to the form but that is a minor matter.
The summary schedule was a useful document and I commend the idea to other litigants in future.
 The approach to costs assessment in the Patents County Court, being a hybrid of the normal summary assessment procedure and the stage limits, involves considering each stage separately. In my judgment the correct approach is as follows. For each stage the party's costs at that stage should be subject to summary assessment. That will produce schedule of figures for each stage. In the PCC the amount of the costs awarded by the court will depend on the nature and complexity of the claim (r 45.42 (4)). The point in the analysis at which this provision can be best applied is this stage. The sum which might emerge from a summary assessment at this stage in the PCC may well be lower than the sum which might emerge from the same process conducted in proceedings before the High Court. In a simple claim with modest sums at stake the sum is very likely to be lower. Section 5 of the Final Report of the IPCUC's Working Group specifically makes the point that in some cases, such as simpler trade mark disputes, there is no reason why the costs spent or awarded should necessarily be as high as the particular stage limits.
 Provided the summary assessment has been approached on the right basis (i.e. as a PCC summary assessment) then in my judgment if the assessed figure for a given stage is less than the limit for that stage then nothing further need be done, and if the summarily assessed sum is more than the limit for a given stage, then the limit is very likely to be the right figure.
 Finally the overall limit should be considered. The maximum recoverable is £50,000. If the total is lower then nothing more is required. If the total approached in this way turns out to exceed £50,000 then, provided the summary assessment was approached on the right basis in the first place, then the limit is very likely to be the right figure."
Stage of Claim
First Interim application
Second Interim application
Preparing for and attending trial and judgment
“The costs stated above do not exceed the costs which the Third Claimant is liable to pay in respect of the work which this statement covers. Counsel's fees and other expenses have been incurred in the amounts stated above and will be paid to the persons stated.”
That schedule, like the third claimant's solicitor's statement as to his client's liability for costs, was good enough for Mr Stone. He said at para  of his judgment:
The defendants had two objections. The first was that their application had not been completely unsuccessful in that they had forced the claimants to provide disclosure and evidence on various licensing issues and that a fair outcome would be for each side to pay its own costs. The second objection was that Table A of the Part 45 Practice Direction limited the recoverable costs to £3,000.
Mr Stone saw no merit in the first objection. He said at para :
"The Claimants were completely successful in resisting the application for strike out and summary judgment, and went on to win the infringement proceedings. The Third Claimant should have its costs."
"It is important in IPEC proceedings that costs assessment not become unnecessary satellite litigation the costs of which are at risk of exceeding the amounts in dispute."