The Intellectual Property Enterprise Court (“IPEC”) has a fixed costs system and must adhere to scale costs and a £50,000 costs cap (CPR 45.30 and Table A of PD45). This provides greater cost certainty for litigants with less complex, lower value IP disputes.
New scale costs, amending Table A, came into force on 1 October 2013 and the recent case of FH Brundle v Perry and others considered the interpretation of the amendments. The IPEC determined that the amendments should be interpreted so that a claim made after 1 October 2013 to bring a new party into an action filed before 1 October 2013 should have costs assessed on the new scale. The original action filed before 1 October 2013 remained on the old scale.
Perhaps most interesting about the case was that the IPEC considered when it can depart from the costs cap and scale costs. The Court determined that it may be able to abandon scale costs if a party has behaved unreasonably but that it should only depart from the overall costs cap in truly exceptional circumstances.
In this case, the unsuccessful defendant (Mr Perry) had acted abusively throughout the case and had even forged a letter from the presiding Judge, purporting to reverse the initial Court decision into his favour. IPEC Judge Hacon decided that, whilst this behaviour was strikingly unusual, it was not truly exceptional on the scale of unsatisfactory behaviour and the cap remained.
Given the Defendant’s “unusual” behaviour, the Court ordered dissemination of the judgment (in an industry magazine) at the Defendant’s expense, perhaps to make up for not exceeding the costs cap.
If faking a letter from the presiding Judge does not amount to exceptional circumstances, then it is clear that the IPEC costs cap is virtually impossible to exceed. This may be good or bad news depending on whether you have won or lost at the IPEC.