Claim No: IP-2021-000080 - [2024] EWHC 396 (IPEC)

Complex interim hearings should be rare in IPEC. While all High Court litigation is governed by the overriding objective in CPR 1.1, and the requirements in CPR 1.2-1.4, those obligations have particular force for both the Court and the parties in this jurisdiction given the stated purpose of IPEC to provide access to justice for those who might otherwise be deterred from litigating for costs reasons.

As pointed out in the well-known Judgment of His Honour Judge Birss QC as he then was, Temple Island v New English Teas[2011]EWPCC 19 (Temple Island), the procedure in IPEC is ‘... intended to be more streamlined, faster and more actively managed that High Court litigation.’ [32]. That case made clear that the costs cap and the costs benefit test go hand in hand. In Liversidge v Owen Mumford [2011] EWPCC 34, also decided by HHJ Birss QC at about the same time as Temple Island, the implications of the costs regime for the way in which cases should be dealt with by the parties and the court was already clear. The Court’s fundamental approach to evidence was explained as follows: ‘The purpose of the Patents County Court procedure is to facilitate access to justice, in part by streamlining and controlling what is admitted into the proceedings … What is reasonable and proportionate is always important. Seeking to justify potentially complex evidence on the basis that it is the best evidence is a path which leads to increases in cost and time’.[26]

As a consequence, the practice in IPEC is to permit witness evidence only where that evidence can be linked to an identified issue and where it passes the costs benefit test. Parties preparing witness evidence must bear that context in mind.

Both the IPEC costs benefit test and the overriding objective oblige parties to have regard to the implications of all the steps they take for costs and for the allocation of court resources. The court will have regard to unnecessary burdens placed on the court or on other litigants when assessing costs.

All procedural steps should be approached in the same way. So, for example, interim applications should be made only where they are likely to satisfy the cost benefit test and the court will have that test firmly in mind when dealing with applications. When an application is necessary, it should be focussed on issues that will make a difference at trial. While acknowledging the adversarial nature of litigation, parties should seek to resolve the matters which are the subject of an application as far as possible before the Court becomes involved. Where points are not pursued, this should be made clear as soon as possible to ensure that preparation time (and, in the case of the judge, scarce pre-reading time) can be devoted to matters that require resolution. There is no merit, and little point, in pursuing steps which will ultimately be irrelevant at trial, in failing to engage with sensible proposals from the other party, or in making points which will not have any meaningful impact on the outcome of the litigation.

To spend disproportionate time dealing with marginal points or to fail to engage meaningfully with issues raised by the other party before an application is issued will increase complexity for the Court, imposing additional demands on limited court resources and raising costs for both parties in a way which is incompatible with litigating in a jurisdiction which is intended to be streamlined, speedy and available to those with limited means. While the cost capping regime may mean that some of the adverse costs consequences of litigating may be mitigated, this provides protection only against adverse costs orders, it does not assist with the costs that may need to be incurred in dealing with unnecessary points and which may not be recoverable, even by a winning party, much less the unsuccessful litigant.