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The Patents County Court is far more than just a court for patent disputes. The name of the court doesn't tell the whole story. Its role has evolved from the time of its creation in the early 1990s to embrace dispute resolution for all intellectual property causes of action. For tiny and medium-sized corporations, it can be the initial choice to resolve intellectual property disputes of all sorts. But concern has developed in respect to the escalating costs involved, even in the Patents County Court.
In England and Wales, litigants are confronted with the risk of adverse expenses orders in the event that they are not effective in court, either as the respective claimant or defendant. Accordingly, one of the key commercial choices for claimant suppliers whose intellectual property rights have been infringed is no matter whether the prospect of recovering the loss caused by infringement of useful intellectual property rights is economical or even worth the risk of an adverse fees order in the event of a failure to succeed at trial.
Recent amendments to the Civil Procedure Rules (CPR) go some distance to rebalancing the commercial priorities and risks of pursing instances in the Patents County Court. In certain, due to the fact October 2010, litigants in the Court are guaranteed - subject to limited exceptions - that the maximum recoverable costs are capped at £50,000. The Patents County Court has given a jurisdictional limit for claims of £500,000.
At very first glance, this is an appealing proposition: assuming a rights owner has a good claim for infringement, the maximum risk to the enterprise will be £50,000 in the legal expenses in the event of defeat. This is not to say that an unsuccessful litigant would be ordered pay £50,000 in adverse expenses orders. The assessed recoverable expenses, including the irrecoverable expenses, have a fixed maximum of £50,000. The exceptions to the capping rules are where (1) a party behaves unreasonably: in such cases, the expenses incurred as a result of the unreasonable conduct of the opposing party may be recovered in addition to the fixed limits and (two) the proceedings relate to an infringement or revocation of patent or registered style and the validity of the rights has previously been certified by a court.
The maximum expenses recoverable at the principal stages of the proceedings are:
Stage and Maximum
- Particulars of Claim - £6,125
- Defence and Counterclaim - £6,125
- Creating or responding to an application - £2,500
- Offering or inspecting disclosure or product/process description - £5,000
- Performing or inspecting experiments - £2,500
- Preparing witness statements - £5,000
- Preparing experts' report - £7,500
- Preparing for and attending trial and judgment - £15,000
An abrogated procedure also applies in proceedings conducted by the court in that:
- after the parties plead their situations, no further evidence, written argument or distinct disclosure will be permitted without the permission of the court. This will be a matter thought to be at the case management conference.
- other applications will if probable be dealt with on paper or by telephone.
- the trial will be restricted to one or at most two days.
These are significant modifications. As Normal Disclosure is no longer a pre-trial step (CPR 63.24), the parties are not obliged to produce any material that is adverse to their circumstances.
A separate maximum of £25,000 also applies to assessments of damages.
These costs recovery rules now assist businesses to make commercial, balanced choices on risk in , without having the risk of exorbitant expenses orders which may well otherwise be ordered in the Chancery Division of the High Court.
The amendments are most likely to revitalise the quantity of business enterprise passing by way of the Patent County Court. Proceedings should really be conducted much more cost-efficiently and with a greater degree of physical exercise of the Court's case-management powers to control the professional evidence applied in the proceedings. Recently, His Honour Judge Birss QC was appointed to the Patents County Court. He has brought a new enthusiasm to exploiting the strengths of the Patents County Court for small and medium-sized companies.
The Patents County Court has now been shaped into an attractive forum for organizations when pursuing intellectual property infringement claims. The relaxation of pre-trial procedures is as substantial as the fixed maximums for recovery of expenses.
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