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England and Wales Patents County Court |
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You are here: BAILII >> Databases >> England and Wales Patents County Court >> Beechwood House Publishing Ltd (t/a Binleys) v Guardian Products Ltd. & Anor [2012] EWPCC 8 (24 February 2012) URL: http://www.bailii.org/ew/cases/EWPCC/2012/8.html Cite as: [2012] EWPCC 8 |
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7 Rolls Buildings London EC4A 1NL |
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B e f o r e :
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BEECHWOOD HOUSE PUBLISHING LIMTED T/A BINLEYS |
Claimant |
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- and - |
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(1) GUARDIAN PRODUCTS LIMITED (2) PRECISION DIRECT MARKETING LIMITED |
Defendant |
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Lawrence Power (instructed by Ashton Bond Gigg) for the Defendants
Hearing dates: 7th February 2012
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Crown Copyright ©
His Honour Judge Birss QC :
Principles to be applied
CPR Part 36
36.14 Costs consequences following judgment
(1) This rule applies where upon judgment being entered-
(a) a claimant fails to obtain a judgment more advantageous than a defendant's Part 36 offer; or
(b) judgment against the defendant is at least as advantageous to the claimant as the proposals contained in a claimant's Part 36 offer.
(1A) For the purposes of paragraph (1), in relation to any money claim or money element of a claim, "more advantageous" means better in money terms by any amount, however small, and "at least as advantageous" shall be construed accordingly.
(2) […] the court will, unless it considers it unjust to do so, order that the defendant is entitled to-
(a) his costs from the date on which the relevant period expired; and
(b) interest on those costs.
(3) [...]the court will, unless it considers it unjust to do so, order that the claimant is entitled to-
(a) interest on the whole or part of any sum of money (excluding interest) awarded at a rate not exceeding 10% above base rate for some or all of the period starting with the date on which the relevant period expired;
(b) his costs on the indemnity basis from the date on which the relevant period expired; and
(c) interest on those costs at a rate not exceeding 10% above base rate.
(4) In considering whether it would be unjust to make the orders referred to in paragraphs (2) and (3) above, the court will take into account all the circumstances of the case including-
(a) the terms of any Part 36 offer;
(b) the stage in the proceedings when any Part 36 offer was made, including in particular how long before the trial started the offer was made;
(c) the information available to the parties at the time when the Part 36 offer was made; and
(d) the conduct of the parties with regard to the giving or refusing to give information for the purposes of enabling the offer to be made or evaluated.
CPR Part 44
Settlement subject to costs
71. For the principles applicable in a situation like this one Mr Mellor cited BCT Software v Brewer (Court of Appeal) [2003] EWCA Civ 939 and Venture Finance v Mead (Court of Appeal) [2005] EWCA Civ 325. As Chadwick LJ said in the Venture Finance case (paragraph 10) it is not in dispute that a judge has jurisdiction to make an order for costs in proceedings in which all substantive issues have been disposed of by agreement but he it not obliged to do so and the dangers in embarking on that course were illustrated in the BCT Software case. In BCT Software Mummery LJ observed at paragraph 9 that in the course of counsel's submissions they "dipped into the detail of the compromised action to such an extent that, at times, there was an uncomfortable feeling that this court was being asked to try the action, which, because it has settled, has never been tried by anyone".
72. In paragraph 23 of his judgment in BCT Software, Chadwick LJ held that unless the court is satisfied that it has a proper basis of agreed or determined facts upon which to decide whether the case is one in which it should give effect to the general rule (i.e. that the unsuccessful party pays the costs of the successful party) or a "different order" (and if so what order) it must accept that it is not in a position to make an order about costs at all.
73. Mr Mellor also mentioned Brawley v Marczynski (which is referred to in Venture Finance) as authority for the proposition that where there was an obvious winner the court can decide the costs.
(1) What happened in these proceedings
The claimant's Part 36 offer on 27th February 2008
i) To accept £1,230 in damages on the defendants' assertion about the extent of its use of the database material, with a proviso in case further information came to light;
ii) To enter a full settlement agreement. This had various terms in it such as undertakings not to repeat the acts complained of and a requirement to identify the source of the database the defendants had used.
iii) The defendants would pay the claimant's costs assessed on the standard basis.
The defendants' 18th March 2008 offer
i) They would pay £1,230 in damages.
ii) They would identify the source but would not provide documents relating to it.
iii) They would give undertakings not to use the claimant's database in future, although the undertakings offered were qualified in that they would not "knowingly" do the acts.
iv) They would pay £4,000 as a contribution to the claimant's costs.
Subsequent correspondence after March 2008 (all without prejudice save as to costs)
October 2008
After October 2008
After the strike out hearing
(2) What should I do in the light of all that has happened?
"The Claimant shall retain the sum of £3,095 previously paid to the claimant's solicitors by the Defendants by way of damages."
Conclusion