News in brief – 07.02.2019

Legal aid group nominations

Nominations for new Legal Aid Group members closed on 18 January and the new committee, effective from 11 March, is:

Steve Jepson and Bob Baker (Co-chairs)

Rachel Perkins (Secretary)

Paul Seddon

Francesca Rigo

Charlotte Flanders


“Exceptional case” need to break IPEC costs cap

It will take a “truly exceptional case” for the Intellectual Property Enterprise Court (IPEC) to allow a successful party costs above the £50,000 costs cap, a judge has warned.

Mr David Stone, sitting as an enterprise judge, was ruling in Tynan v J4K Sports Ltd [2018] EWHC 3519 (Ch), in which he struck out the defence and counterclaim of the defendant and named the claimant as the legal owner of the designs in some football goalkeeping gloves.

The claimant argued that he should recover his costs of £94,000. The court can only go above the cap if there are exceptional circumstances or the losing party has behaved in a way that amounts to an abuse of process.

Having found no abuse of process, the judge said: “I am mindful of the importance for small- and medium-sized litigants to have the advantages of the IPEC (including the £50,000 costs cap) without the fear of bankruptcy brought on by substantial costs orders.

“In my judgment, following what was said by HHJ Birss QC [in Westwood v Knight [2011] EWPCC 11], it really ought to be a truly exceptional case, and, in my judgment, this case is not.

“It is regrettable that the claimant will not recover his full costs in this case. Unfortunately, that is the nature of this specialist jurisdiction. The overriding policy objective of encouraging small- and medium-sized enterprises to use the court must outweigh any unfairness to the claimant on this occasion.”


Costs jurisdiction of the IPT “not clear”

There is no clear authority which states that this Investigatory Powers Tribunal can award costs, its president has said.

Lord Justice Singh said there was authority from 2011 to the effect that it did not (W v Public Authority (IPT/09/134/C) (1 February 2011)), but more recently the tribunal had made an order for costs in one case.

But, in Wilson v Commissioner of Police for the Metropolis and Anor (Costs) [2018] UKIPTrib IPT_11_167_H_2, he said neither counsel nor the tribunal were able to find a transcript of that latter judgment, and in any event, the order was made in circumstances which were described as being wholly exceptional.

Singh LJ: “In a future case, the tribunal may have to consider further the question of law whether it has jurisdiction to make an award of costs at all. It would be appropriate to do so only after full argument given the earlier decision in W.”

In the case before it, the tribunal proceeded on the assumption that the jurisdiction existed but was only to be exercised in rare cases which were highly unusual. It decided not to make an order on this basis.

The tribunal provides a right of redress for anyone who believes they have been a victim of unlawful action by a public authority using covert investigative techniques. The tribunal also considers complaints about any conduct by or on behalf of the UK intelligence community, MI5, SIS and GCHQ, as well as claims alleging the infringement of human rights by those agencies.


Defendant awarded indemnity costs over discontinued claims

The High Court has awarded indemnity costs in respect of two discontinued arbitration claims brought under section 68 Arbitration Act 1996.

Sir William Blair, sitting as a High Court judge in Koshigi v Donna Union Foundation [2019] EWHC 122 (Comm), found that the claimant had put forward a “very weak case” of bias and non-disclosure.

He said: “Advancing such a case under section 68 Arbitration Act 1996 may well in itself justify the court awarding indemnity costs. Here, however, there is an additional consideration, in that the section 68 claims were discontinued shortly before the hearing of DUF’s application for security for costs…

“There is no doubt that security for costs would have been ordered, almost certainly in a substantial amount. It is the combination of factors in this case that takes the case out of the norm. In the circumstances, DUF is entitled to an order for indemnity costs. That is to include costs of the security for costs hearing and the costs of this hearing.”

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Costs News
Published date
06 Feb 2019

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