Convatec Ltd and Others v Smith and Nephew Ltd and Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Kitchin |
| Judgment Date | 02 May 2012 |
| Neutral Citation | [2012] EWCA Civ 1264 |
| Court | Court of Appeal (Civil Division) |
| Date | 02 May 2012 |
| Docket Number | Case Nos: A3/2011/2528, A3/2011/2530 & A3/2011/2514 |
[2012] EWCA Civ 1264
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
PATENTS COURT
HHJ BIRSS QC (SITTING AS A JUDGE OF THE HIGH COURT)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Mummery
Lord Justice Tomlinson
and
Lord Justice Kitchin
Case Nos: A3/2011/2528, A3/2011/2530 & A3/2011/2514
Mr Piers Acland QC and Dr Brian Nicholson (instructed by Messrs Latham and Watkins) appeared on behalf of the Appellants
Mr Justin Turner QC and Mark Chacksfield (instructed by Messrs Slaughter and May and Messrs Bristows) appeared on behalf of the Respondents
Judgment on form of order
For the reasons set forth in the judgment which we are handing down the appeal and cross-appeal are dismissed. We have given careful consideration to the submissions filed by the parties concerning the form of order. Dealing first with the question of costs, the parties are agreed that it is desirable that any costs awarded to the claimants (appellants) should be set off against any costs awarded to the defendants (respondents) to avoid an unnecessary assessment.
The appeal having failed, we believe the defendants are entitled to their costs but so also, the cross-appeal having failed, we consider that the claimants should have their costs of the cross-appeal too.
Doing the best we can, we would attribute 20 per cent of the costs of the appeal proceedings as a whole to the cross-appeal, and accordingly have reached the conclusion that the defendants are entitled to 60 per cent of their costs of the appeal proceedings, that is to say the appeal and the cross-appeal, such costs to be assessed on the standard basis if not agreed.
We do not believe it is appropriate to require the tax forms or guarantee sought at a very late stage by the claimants. The claimants made an offer to pay all of the costs of the first and second defendants. That offer was conditional upon the provision of the tax forms and guarantee to which we have referred and accordingly we see no alternative but to proceed to consider the remaining parts of...
To continue reading
Request your trial