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.