Akhtar
v Bhopal Productions (UK) Ltd, 2015 WL 376075 which was said by Ms Wickenden to be of “particular relevance” and Link UP Mitaka Limited trading as Thebigword v Language Empire Limited, Yasar Zaman [2018] EWHC 2728 (IPEC). 23.I do not see that either case really assists the Claimants with this application. The Akhtar24.As to Link UP Mitaka Limited trading as Thebigword v Language Empire Limited, Yasar Zaman [2018] EWHC 2728 (IPEC), I accept the submission that this case draws a distinction between the “truly exceptional circumstances” required to lift the overall scale costs and mere “unreasonable conduct” which is sufficient to justify the lifting of the cap for one or more stages of the claim. 25.I have considered the summary of the case law on unreasonable conduct in relation to applications for the purposes of CPR 63.26(2) as summarized in paragraphs 9 – 059 – 9-061 of Fox, The Intellectual Property Enterprise Court: Practice and Procedure (3rd edition 2021). It is it seems to me possible to distill the following four points:a.The mere fact that an application fails is not in and of itself evidence that the applicant was unreasonable to bring it.b.The bringing of a truly groundless application may amount to unreasonable conduct.c.“Unreasonable conduct” under r.63.26(2) is not concerned with the behaviour or attitude of the parties generally, but rather with their behaviour in and towards the process of the court.d.Behaviour that only forms part of the general “cut and thrust” of litigation is unlikely to be regarded as unreasonable for the purposes of r.63.26(2).26.The following complaints were made by the Claimants: a.Despite having ample notice of the CMC, as originally listed 7 December 2021, and having been served with a summary judgment application nearly 2 weeks prior to that listing (which should have come as no surprise given correspondence and the notice to admit), the Defendants’ response to the service of an application was to threaten issuing four applications and relist the hearing. b.None of the threatened four applications, of which only two were issued, were consequential on the summary judgment application. There is no reason why they should not have been prepared and issued in good time prior to the CMC as first listed. It is apparent from the timeline of events that the threatened applications were simply a tactical move in retaliation to the Claimant’s application to put pressure on the Claimants, and delay matters.c.Despite the threats of four applications and relisting, the Defendants did not engage at all in relation to the substance of the applications and only issued two of the four applications shortly before the relisted hearing. Evidence was not provided until later and no evidence at all was provided in relation to the strike-out application. The Claimant’s learned the Defendants’ substantive position only in Counsel’s skeleton argument, which advanced a number of unsubstantiated and un-pleaded new arguments.d.The entirety of the Defendants’ approach to this case so far, and particularly in the lead up to the CMC and the applications, has been obstructive and uncooperative. 27.None of matters set out in paragraphs (a) – (c) above in my judgement come any where close to being unreasonable behaviour within the meaning of CPR63.26(2) and I do not accept that point (d) is a fair summary. The complaints in substance amount to saying that the Defendants were slow and not perhaps as focused and strategic as they might have been. Having read all the correspondence and the evidence in relation to the Applications, it is clear that the Claimants felt frustrated at not being able to pin the Defendants down in various respects but none of the Defendants behaviour fell outside of the ambit of the general pull and push of IPEC litigation between SMEs. I would accept that the Defendants have been at times slow to respond and have indicated that certain steps would be taken which then were not but I do not accept it is fair to describe their conduct as obstructive or unreasonably uncooperative. 28.I also do not accept that either of the Defendants’ applications were wholly without merit. The application to strike out was advanced in good faith and was foreshadowed by a number of pleaded complaints about the structure and content of the Particulars of Claim. The CMC was the appropriate time to air the complaints that counsel for the Defendants had about the Particulars of Claim. Whilst I was not persuaded that the complaints justified a surgical strike out, I did not find the Particulars of Claim all that easy to follow in some respects. The application was not in my judgment motivated by a desire to put pressure on the Claimants. 29.The application for security for costs was finely balanced. Based on the figures and information available to the Defendants about the financial standing of the Claimants at the time it was made, I could quite see why it was made. It failed but was not, in my judgement, misconceived or unjustified.