Saint-Gobain v 3M
| Jurisdiction | England & Wales |
| Judge | Michael Tappin |
| Judgment Date | 23 November 2023 |
| Neutral Citation | [2023] EWHC 2949 (Pat) |
| Court | Chancery Division (Patents Court) |
| Docket Number | Case No: HP-2020-000024 |
[2023] EWHC 2949 (Pat)
Michael Tappin KC
(sitting as a Deputy Judge of the High Court)
Case No: HP-2020-000024
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
INTELLECTUAL PROPERTY LIST (ChD)
PATENTS COURT
Rolls Building
Fetter Lane
London, EC4A 1NL
Approved Judgment
I direct that no official shorthand note shall be taken of this judgment and that copies of this version as handed down may be treated as authentic.
This judgment was handed down remotely at 10.30 am on 23 November 2023 by circulation to the parties' representatives by email.
The Deputy Judge:
I now have to deal with the costs of the applications addressed in my judgment [2023] EWHC 2769 (Pat). It is agreed that 3M should pay SG's costs of the applications on the standard basis and that I should summarily assess those costs. The parties were agreed that I should deal with the matter on the papers and I received written submissions from both parties.
SG's statement of costs claims a grand total of in excess of £104,000, made up of solicitors' costs of in excess of £66,000, counsels' fees in excess of £33,000 and other disbursements in excess of £5,000. 3M submits that SG should recover no more than about £68,500. In support of that, it refers to its statement of costs which is in the sum of about £61,500. However, as SG notes, it does not cover the whole of the period covered by SG's statement of costs (it does not cover the period before 3M's current solicitors were instructed, nor has it been updated to take account of the fact that the hearing took longer than expected or to take account of post-hearing work.).
CPR 44.3(1)&(2) provide that the court will not allow costs which have been unreasonably incurred or are unreasonable in amount and will only allow costs which are proportionate to the matters in issue. Any doubt as to whether the costs were reasonably incurred or were reasonable and proportionate in amount is to be resolved in favour of the paying party. CPR 44.3(5) provides that costs are proportionate if they bear a reasonable relationship to, inter alia, the sums in issue in the proceedings, the value of any non-monetary relief in issue in the proceedings, and the complexity of the litigation. CPR 44.4(3) sets out the factors to be taken into account in deciding the amount of costs, which include the conduct of the parties, the value involved in the proceedings, the importance of the matter to the parties, the complexity of the proceedings, the skill and specialised knowledge of the lawyers and the place where the work was done.
I have had regard to the guidance in the Guide to the Summary Assessment of Costs (2021 edition) (“the Guide”), including in particular paragraph 15 regarding the application of the test of proportionality (by reference to West v Stockport NHS Foundation Trust [2019] EWCA Civ 1220), paragraphs 27–29 and Appendix 2 regarding the guideline figures for solicitors' hourly rates, and paragraphs 36–37 regarding counsels' fees.
The principal dispute between the parties concerns the hourly rates claimed by SG's solicitors. Paragraphs 27–28 of the Guide indicate that the guideline figures in Appendix 2 are intended to provide a useful starting point, and are not scale figures but rather broad approximations only. Further, paragraph 29 indicates that in substantial and complex litigation an hourly rate in excess of the guideline figures may be appropriate where factors such as the value of the litigation or the level of complexity of the matter would justify a significantly higher rate. It also notes that the rates for London 1 cover ‘very heavy commercial and corporate work’ and that within that pool of work there will be degrees of complexity.
3M referred me to the judgment of the Court of Appeal in Samsung Electronics Co Ltd v LG Display Co Ltd [2020] EWCA Civ 466, where Males LJ referred to the guidance in paragraph 29 of the Guide and then said that “If a rate in excess of the guideline rate is to be charged to the paying party, a clear and compelling justification must be provided.” SG responded by referring me to the observations of Adam Johnson J in Lappet Manufacturing Co Ltd v Rassam [2022] EWHC 2158 (Ch) that a departure from the guideline rate was justified “on the basis of the long-established principle that specialist solicitors in specialist areas of activity should recover an uplift to reflect that specialism, where that is justified in the circumstances”, citing HHJ Pelling in ABS Co Ltd v Pantaenius UK Ltd [2020] EWHC 3720 (Comm). However, in those two cases the issue was whether the receiving party should recover at a rate above that applicable for Nottingham or London 3. As Males LJ...
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