Description
Costs judgment following a finding of passing off in the Intellectual Property Enterprise Court (IPEC).
Held: In the IPEC, litigation only over costs is not to be encouraged. The court must strike a balance between providing a fair level of recovery for meritorious claimants while encouraging early resolution of proceedings without a trial. As such, significant account will be taken of reasonable admissible offers to settle when determining costs. Where an offer omits an aspect of relief or costs that is insignificant, a claimant who successfully takes that issue to trial should not expect to recover the full costs of doing so. Equally, if an offer has been made which does not provide for costs, following an indication that the claim is likely to succeed, it is more incumbent on a defendant to make a sensible offer which includes costs if they are to avoid payment of a substantial sum.
In the present case, the majority of costs were incurred after an offer was made. Claimant awarded 100% costs incurred prior to the offer, 50% thereafter. None of the defendants' costs were recoverable. Relevant factors included: that the claim was meritorious; the defendants made a reasonable offer covering substantially all of the relief realistically obtainable at a relatively early stage; following the offer, the case largely became about costs; despite the offer, the defendants continued to deny liability; and, that the claimant abandoned a challenge that changes made by the defendants were insufficient to avoid liability.
