F H Brundle v Richard Perry Betafence Ltd and Another (Third Parties)
| Jurisdiction | England & Wales |
| Judge | His Honour Judge Hacon,Judge Hacon |
| Judgment Date | 02 April 2014 |
| Neutral Citation | [2014] EWHC 979 (IPEC) |
| Court | Intellectual Property Enterprise Court |
| Date | 02 April 2014 |
| Docket Number | Case No: CC13P00980 |
[2014] EWHC 979 (IPEC)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
INTELLECTUAL PROPERTY ENTERPRISE COURT
Royal Courts of Justice, Rolls Building
Fetter Lane, London, EC4A 1NL
His Honour Judge Hacon
Case No: CC13P00980
and
Stuart Baran (instructed by Collyer Bristow LLP) for the Claimant
The Defendant appearing in person
Jeremy Heald (instructed by Wake Smith LLP) for the First Third Party
Hearing dates: 27 th March 2014
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
On 6 March 2014 I handed down judgment in this action. At a subsequent hearing on 27 March 2014 I made an order dealing with, among other things, costs and dissemination of the judgment. These are my reasons in relation to those two matters.
Costs
Transitional provisions for scale costs in the IPEC
The Claimant ("Brundle") has succeeded both in relation to Brundle's claim against the Defendant ("Mr Perry") for groundless threats of patent infringement proceedings and in relation to Mr Perry's counterclaim for patent infringement. The First Third Party ("Betafence") has succeeded in relation to the additional claim brought against it for infringement of Mr Perry's patent. Both Brundle and Betafence are entitled to an award of costs.
Brundle's claim form is dated 12 March 2013. Brundle accepts that the costs it seeks should comply with the scale costs set out in 'old' Table A in Practice Direction 45, i.e. that table as it applied on 30 September 2013 (see Phonographic Performance Limited v Hamilton Entertainment Limited No. 2 [2013] EWHC 3801 (IPEC)). This is subject to a submission that scale costs should not apply at all, considered below.
On 20 December 2013 Mr Perry issued a claim form for additional claims under CPR Part 20. One of the claims brought by Mr Perry was in fact a counterclaim against Brundle for infringement of his patent. This was procedurally inappropriate but nothing turns on it. In addition Mr Perry's claim form alleged that the two Third Parties, Betafence and Britannia Fasteners Limited ("Britannia") had infringed Mr Perry's patent. Britannia took no part in the proceedings. Betafence did and has won. Betafence now submits that it should be awarded costs based on 'new' Table A, i.e. that table as it has applied since 1 October 2013.
As Birss J stated in PPL v Hamilton No. 2 (cited above) the relevant transitional provisions are found in paragraph 25 of CPR Update 66:
"Transitional and saving provisions
25) In respect of the amendments made to Practice Direction 45 – Fixed Costs by paragraph 24)(d)—
(a) those amendments shall only apply to proceedings started in the Intellectual Property Enterprise Court on or after 1st October 2013, and
(b) Table A and Table B in Practice Direction 45, as they applied on 30th September 2013, shall continue to have effect in respect of any proceedings started in a patents county court which are continued in the Intellectual Property Enterprise Court."
On one interpretation of that paragraph 'proceedings' is a collective term encompassing all claims, counterclaims and additional claims in a single piece of litigation. On that basis Betafence's costs should be assessed by reference to the old Table A. But I think that would place too great a weight on the assumption that the draftsman of paragraph 25 of CPR Update was concerned with nuances of distinction between 'proceedings' and 'claims'. In fact no such distinction is consistently applied in the CPR as a whole, see also Liversidge v Owen Mumford Ltd [2012] EWPCC 40; [2013] FSR 38 at [13], in which HH Judge Birss QC declined to adopt a strict distinction between a 'claim' and 'proceedings' (albeit in a different context) as those terms are used in the CPR.
I take the view that the rules on scale costs in the IPEC and the transitional provisions of paragraph 25 of CPR Update 66 were intended to reinforce the legitimate expectations of parties when they start a claim in the IPEC. If a claim form was issued before 1 October 2013 both claimant and defendant would have expected that the scale costs of old Table A would apply to that claim from start to finish. Where a claim form was issued on or after that date, including a claim form issued by a defendant in an existing action to bring an additional claim against a third party, the defendant and in particular the third party could properly expect the scale costs of that additional claim to be assessed according to new Table A.
I therefore accept that Betafence's costs should be awarded according to new Table A, i.e. as set out in Section IV of Practice Direction 45.
As to quantum, it is sufficient to note that applying old Table A to Brundle's costs I would award Brundle £34,525, including £15,000 for preparation and attending trial and judgment – the maximum stage payment. Applying new Table A to Betafence's costs I would award Betafence £11,120. The costs incurred by Betafence in relation to trial and judgment were £8,587; I awarded £6,400, self-evidently well below the maximum stage payment of £16,000 in new Table A.
Departure from the costs cap and scale costs
Brundle and Betafence argued that the costs cap and scale costs should not be applied at all in this case because of Mr Perry's unreasonable behaviour. It was submitted that I should take this behaviour into account pursuant to CPR 44.2(4)(a). Brundle pointed to Mr Perry's persistent use of intemperate language and expletives in his pleadings and in his skeleton argument for the trial. This is consistent with the way Mr Perry has expressed himself in emails sent to my clerk. I was told that Mr Perry was warned about his language by Mr Recorder Meade QC at an application before him on 16 May 2013. Before me Mr Perry, who appeared in person, accepted that he had been warned by Mr Meade and that he had chosen not to heed the warning.
Mr Perry's unwise behaviour took another turn the day before the present hearing. On 26 March 2014 he sent an email to my clerk, to the chambers of counsel for Brundle and Betafence and to their respective instructing solicitors. In the email Mr Perry said he had received a letter, which he attached. The letter purported to come from me, was addressed to Mr Perry and was as follows.
"Royal Courts of Justice
Patents County Court
Rolls Building, Fetter Lane
London
sales@hmcts.fasteners.co.uk
Mr Richard Perry
19 Yerbury Street
Trowbridge, Wiltshire
BA14 8DP
26 th March 2014
Claim CC13P00980
Dear Mr Perry,
I have re-considered the case CC13P00980 and upon reflection; your opponents (FH Brundle, Betafence and Britannia Fasteners) having used your name on...
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