Bargain Busting Limited v Shenzhen SKE Technology Company Limited & Ors [2026] EWHC 1146 (Ch)

[2026] EWHC 1146 (Ch)Case No CH-2024-000288IN THE HIGH COURT OF JUSTICEVenue BUSINESS AND PROPERTY COURTS IN BRISTOLCHANCERY APPEALS LIST (ChD)Venue Bristol Civil Justice Centre, 2 Redcliff Street, Bristol, BS1 6GRDate 13 May 2026
Before
HHJ PAUL MATTHEWS(sitting as a Judge of the High Court)
Between
BARGAIN BUSTING LIMITEDApplicantContemptApplicantSHENZHEN SKE TECHNOLOGY COMPANY LIMITEDRespondentBARGAIN BUSTING LIMITED Contempt Applicant- and -1.SHENZHEN SKE TECHNOLOGY COMPANY LIMITED 2.STOBBS IP LIMITED 3.WAN-YI TSAI 4.JIXUAN SI Contempt Respondents
Aidan Eardley KC (instructed by Brandsmiths) for Contempt ApplicantFiona Horlick KC and Charlotte Elves (instructed by Kingsley Napley LLP for First Contempt Respondent, and by Hickman and Rose for the remaining Contempt Respondents) for the Contempt RespondentsConsequential matters dealt with on paper
This judgment was handed down remotely at 4.30 pm on 13 May 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archive.HHJ Paul Matthews :

Introduction

[1]On 23 April 2026 I handed down judgment ([2026] EWHC 933 (Ch)) on the various applications then before me in these contempt proceedings, which had been started by a contempt application in August 2025. I made an order disposing of those applications, and inviting written submissions on consequential matters. I have now received and considered these submissions, together with a clip of correspondence and attendance notes. These are my reasons for the consequential orders that I now make.[2]The claimant accepts that it has been unsuccessful in the Strike Out Applications and the Contempt Application (and therefore also the Joinder Application). It does not resist the application by the defendants and Mr Rebling that the claimant pay their costs of such applications on the standard basis. It submits that such costs should be subject to detailed assessment, and that it would be inappropriate to order any payment on account. Finally, the claimant seeks permission to appeal.[3]On the other side, the defendants and Mr Rebling ask for their costs on the indemnity basis. They do so on the basis that (in their view) the claimant by these proceedings sought to weaponise the contempt jurisdiction against the defendants, to drive a wedge between the defendants and their lawyers, to strike fear and loss of professional status amongst the defendants’ lawyers, and to boast to the IP legal market.

Costs

[4]In deciding what order (if any) to make about costs, the court must consider all the circumstances of the case, and in particular the conduct of the parties: CPR rule 44.2(4), (5). In considering an award of costs on the indemnity basis, there are a range of factors that may be taken into account: Three Rivers DC v Bank of England [2006] EWHC 816 (Comm), [25]. However, such an award is generally appropriate where the behaviour of the paying party or the circumstances of the case take it out of the norm: Excelsior Commercial & Industrial Holdings Ltd v Salisbury Hammer Aspden and Johnson [2002] EWCA Civ 879;Hosking v Apax Partners Ltd [2019] 1 WLR 3347, [42].

Basis of assessment

[5]In seeking an award of indemnity costs, the defendants and Mr Rebling refer to a number of matters taking place during the course of the litigation. One is that the defendants offered a settlement (discontinuance by the claimant, with the claimant paying the defendants’ costs on the indemnity basis) in open correspondence in August 2025, and withdrew it only in January 2026, repeating the offer at various points during that period. Another is that, at a directions hearing on 16 January 2026 before Trower J, dealing with the contempt application, the judge addressed the claimant’s counsel and said that “the weaponisation of the contempt jurisdiction in these courts is a problem … and at first blush this application strikes me as an application which falls fairly and squarely into that category of case…”[6]The defendants and Mr Rebling say that, later in January, the claimant by its solicitors alleged that the 2nd to 4th defendants were in breach of the SRA Code of Conduct, but offered not to report the matter to the SRA if they and the first defendant paid the costs incurred in connection with the trademark applications. The letter to the defendants’ solicitors dated 23 January 2026 includes the following:
“2. Whilst our client maintains that the First Defendant knowingly interfered with the due administration of justice as detailed in the applications, it is minded to proceed pragmatically in these proceedings and is prepared to withdraw the Applications, subject to agreement on costs as set out in paragraph 3 below. 3. Specifically, our client proposes that the Defendants to the Applications agree to jointly pay our client’s costs incurred in connection with the Applications up to and including 19 September 2025 … [ … ] 5. Our client remains mindful of the breaches of the SRA Code of Conduct for Solicitors by your clients, in particular: Rule 1.4: You do not mislead or attempt to mislead your clients, the court or others, either by your own acts or omissions or allowing or being complicit in the acts or omissions of others (including your client); • Rule 2.5: You do not place yourself in contempt of court, and you comply with court orders which place obligations on you; and • Rule 2.6: You do not waste the court’s time. 6. While your clients’ actions detailed in the Applications indicate noncompliance with these rules, for the reasons already explained in those Applications, our client is also prepared to refrain from pursuing this matter further, including notification to the Solicitors Regulation Authority, in the interests of reaching a prompt and amicable resolution with your clients in accordance with paragraph 3 above.”
Rule 1.4: You do not mislead or attempt to mislead your clients, the court or others, either by your own acts or omissions or allowing or being complicit in the acts or omissions of others (including your client); • Rule 2.5: You do not place yourself in contempt of court, and you comply with court orders which place obligations on you; and • Rule 2.6: You do not waste the court’s time. 6. While your clients’ actions detailed in the Applications indicate noncompliance with these rules, for the reasons already explained in those Applications, our client is also prepared to refrain from pursuing this matter further, including notification to the Solicitors Regulation Authority, in the interests of reaching a prompt and amicable resolution with your clients in accordance with paragraph 3 above.”[7]Correspondence between the solicitors followed, and there was a telephone call, without prejudice save as to costs, between them on 11 March 2026. I have seen a very full attendance note of that telephone call. During the call, Mr Lowry, on behalf of the claimant, is recorded as having said that “an order is an order and that was disobeyed. At the particular time, we had to do something about it and we did. The trademark was subsequently registered.” Thereafter, he proposed settlement on the basis that the parties agreed to discontinue the application. The first defendant wanted its costs on the indemnity basis, whilst the other defendants simply sought their costs (without specifying the basis). Mr Lowry said he would take instructions on whether “we could meet you guys halfway”. He agreed that the contempt application was “a side show” and emphasised the negative impact of the contempt proceedings on the careers of the lawyers concerned.[8]On the other side, the claimant says that the court made no findings that the claimant’s applications were abusive, or any other findings that could be said to take this case out of the norm. It goes on to say that the August 2025 offer of settlement was not a genuine offer, because it required the claimant to discontinue and pay the defendants’ costs on the indemnity basis. Moreover, the defendants did not refer in correspondence to the points which were ultimately successful, or make applications to strike out the contempt proceedings until January 2026. The claimant also says that it sought to speak to the defendants, without prejudice save as to costs, in early January 2026. The correspondence shows that the claimant’s solicitors were proposing discontinuance on agreed terms as to costs.[9]The claimant further says that the January 2026 letter did not contain any threat to report first defendant’s solicitors to the SRA. Instead, it explained that, if the contempt allegations were well-founded, the defendants’ “conduct would also amount to breaches of the SRA code”. However, it reassured the defendants “that, if the contempt application were to be settled, [the claimant] would not then seek to raise the same allegations in another forum”. The claimant also says that the telephone call of 11 March 2026 has been “mischaracterised”. It was a genuine attempt to resolve the matter. The letter the same day from the claimant’s solicitors included this:
“We wish to co-operate on discontinuing the Contempt Applications. You will appreciate that an ‘offer’ for us to pay your clients’ costs on an indemnity basis following discontinuance is not a genuine offer to settle a dispute; that position is actually your clients’ ‘best case’ scenario.”
[10]In my judgment, in order to award costs on the indemnity basis, it is not necessary that the court make findings in its main judgment on all the matters which are relevant to its decision on costs. Obviously, that judgment will deal with the question who has been successful or unsuccessful on this or that part of the case. But the general conduct of the parties in the litigation itself is usually not an issue which arises for decision, and therefore may not be the subject of any factual findings. As it happens, in paragraphs 33-34 of my earlier judgment I commented adversely on the weaponisation of the contempt jurisdiction and its negative impact on the legal system and its users. But in any event, if the court has the material to do so, it may make supplementary findings for the purpose of dealing with consequential matters after the handing down of the main judgment, and after giving the parties an opportunity to be heard.[11]In the present case, I have not only the material which was before the court on the hearing of the strike out and other applications, but also the relevant correspondence, which was supplied after the judgment for the purposes of deciding consequential matters. The parties have had the opportunity to make primary and responsive submissions on those consequential matters, and I am satisfied that I am now in a position to make a decision on the question of costs, and on the basis of the assessment of those costs.[12]The claimant accepts that it should pay the defendants’ costs of the applications. The argument is about the basis the assessment of those costs. The mere fact that the claimant has been unsuccessful in proceedings would not be a proper basis for awarding indemnity costs. But here the proceedings themselves were of an unusual nature, making very serious allegations against officers of the court, and potentially having far-reaching professional consequences for those officers. In terms of seriousness, I put the allegations in the contempt application on the same level as allegations of dishonesty. It is clear that there is no presumption that a failure to make allegations of dishonesty should normally lead to an order for costs on the indemnity basis. Instead, it is a factor to take into account, and may be a reason for making such an[13]Other factors which I take into account are the following. First, the nature of the acts which were said to amount to contempt of court, namely, writing to a court or other authority (such as the IPO) to ask it not to enforce an order (here, register the trade mark in dispute) until the Court of Appeal had disposed of the outstanding application for permission to appeal. This is the kind of thing which solicitors do all the time. In this case, it was also supported by the previous (published) practice and decisions of the IPO. It is hard to understand how the claimant’s solicitors can have formed the view that this conduct could have amounted to a criminal offence. I had little difficulty in reaching the conclusion, after hearing argument, that it did not.[14]Second, I take into account the letter of 23 January 2026. Notwithstanding the submissions of the claimant’s counsel, that letter, very carefully constructed as it was, would have been read and understood by any reasonable addressee as a threat to report the defendants to the SRA unless they agreed to the claimant’s terms. I am satisfied to the civil standard that the claimant’s solicitors so intended, but, even if I were wrong about that, the letter should still be judged for present purposes by its effect upon the reasonable addressee, because the meaning of such a letter is to be ascertained objectively.[15]Third, I take into account the without prejudice save as to costs telephone call between the solicitors on 11 March 2026. It is clear from this that the claimant justified the issue of criminal contempt proceedings in August 2025 as a form of pressure on the defendants to cease trying to persuade the IPO to delay registration of their client’s trade mark. But criminal proceedings should not be used for such a purpose.[16]In my judgment, whether or not these various factors would each individually justify an award of costs on the indemnity basis, I am quite satisfied that, taken together, they do so overwhelmingly. The claimant made very serious allegations against the defendants, and lost. It was wrong and out of the norm for the claimant’s solicitors opportunistically to seek to use criminal contempt proceedings, in which the touchstone is the public interest in the administration of justice, in order to pursue their client’s private interests. It was wrong and out of the norm for the claimant’s solicitors to threaten the defendants with being reported to the SRA in order to persuade them to agree to their client’s terms. The claimant must pay the defendants’ costs on the indemnity basis.

Mode of assessment

[17]The next question is whether those costs should be assessed summarily, by me, or sent for detailed assessment. The claimant says that the costs schedules served by the defendants and Mr Rebling total some £293,460. I make it £296,099.61, plus applicable VAT (ie on the costs of Hickman & Rose), which comes to £322,628.77. The claimant says that there should be detailed assessment, largely because of the size of the claim. The defendants and Mr Rebling say that there should be a summary assessment, on the basis that there is no good reason for departing from the general approach set out in paragraph 9.2 of CPR PD44. This is that the court should make a summary assessment at the conclusion of a hearing which has lasted not more than one day. That was this case.[18]In my judgment, the costs of the contempt proceedings, including the strike out and amendment applications, should be subject to detailed assessment. This is not simply because the amount of money involved is significant. It is because these were complex and hard-fought multi-party proceedings which have lasted about eight months. On any view, a lot of work has been done by all those involved. The fact that the hearing which put an end to these proceedings lasted less than one day does not tell the full story. Justice to both sides requires a detailed assessment.

Payment on account?

[19]However, in the circumstances I have to consider whether to order the payment of a sum on account of costs. CPR rule 44.8 provides that:
“Where the court orders a party to pay costs subject to detailed assessment, it will order that party to pay a reasonable sum on account of costs, unless there is good reason not to do so.”
[20]The claimant says that a “lack of clarity about the Defendants’ costs also makes a payment on account inappropriate.” I do not agree. It simply means that the court must be more cautious in fixing “a reasonable sum”. In Excalibur Ventures LLC v Texas Keystone Inc [2015] EWHC 566 (Comm), Christopher Clarke LJ said:
“22. It is clear that the question, at any rate now, is what is a ‘reasonable sum on account of costs’… 23. What is a reasonable amount will depend on the circumstances, the chief of which is that there will, by definition, have been no detailed assessment and thus an element of uncertainty, the extent of which may differ widely from case to case as to what will be allowed on detailed assessment. Any sum will have to be an estimate. A reasonable sum would often be one that was an estimate of the likely level of recovery subject, as the costs claimants accept, to an appropriate margin to allow for error in the estimation. This can be done by taking the lowest figure in a likely range or making a deduction from a single estimated figure or perhaps from the lowest figure in the range if the range itself is not very broad.”
[21]On the other hand, this is complex, high-value work carried out by specialists on both sides. It would amply justify the London 1 guideline hourly rate. And, as the Court of Appeal has said on more than one occasion, it is possible to justify a higher rate still in exceptional cases. I have heard no submissions on that, and therefore say nothing about it. But I note that the claimant’s solicitors claim rates in their costs schedules of £1,100 and £605 for grade A, £550 and £500 for grade B, £380 and £370 for grade C, and £240 for grade D, all of which considerably exceed the London 1 rate. In contrast, those claimed by the defendants’ and Mr Rebling’s solicitors fall partly within and partly outside the London 1 rates, whilst those for Stobbs IP itself (when acting for the first defendant) are all within the London 1 rates.[22]In Thomas Pink Ltd v Victoria's Secret UK Ltd [2014] EWHC 3258 (Ch), the judge made an order for a payment on account equal to 90% of the approved budget. Given that there is no approved costs budget for these proceedings, I must be more cautious. There is the point about rates claimed, which I have just referred to. The claimant makes a point about duplication of effort between Stobbs IP and Kingsley Napley, both of whom acted for the first defendant. The claimant also made a point about VAT on Kingsley Napley’s costs schedule, but this has now been corrected. Overall, I think I should build in a margin of about one third, and so I will order the claimant to pay £215,000 on account of costs, to be paid to the three solicitors’ firms pro rata to their schedules of costs.

Permission to appeal

[23]Finally, there is the question of permission to appeal. An appeal from my decision requires permission to appeal: CPR rule 52.3(1)(a). Under CPR rule 52.6, in a first appeal (such as this is) the court may not grant permission to appeal unless either there is a real prospect of a successful appeal or there is some other compelling reason why an appeal should be heard. The phrase 'real prospect' does not require a probability of success (ie more likely than not), but merely means a prospect which is 'not unreal': Tanfern v Cameron-MacDonald [2001] 1 WLR 1311, [21], CA; Re R (A Child) [2019] EWCA Civ 895, [31]. If the application passes that threshold test, however, the court is not obliged to give permission to appeal; instead it has a discretion to exercise.[24]The claimant puts forward five grounds of appeal. Thefirst ground concerns the public interest, and has three points. The first point is that I was wrong to direct myself (at [26], [37] and [38) there that the presence of a private interest rules out the possibility of a party invoking the law of criminal contempt. But I did not say that. What I had in mind, and sought to express, was the idea that it was impermissible to use criminal contempt proceedings simply for the purpose of pursuing private interests. There is accordingly nothing in this point.[25]The second point is that I misunderstood the significance of BBL’s submission that “there is no requirement for a person who brings a contempt application as of right to demonstrate some wider public interest” (at [35]-[36]). I do not think I misunderstood the significance of the submission, but the submission was in fact made. Even if I had misunderstood its “significance”, the claimant does not say I was wrong to say that a wider public interest must be shown. There is nothing in this point either.[26]The third point is that I was wrong (at [38]) to hold that “BBL cannot show any sufficient public interest in prosecuting these allegations of criminal contempt”. But that was an evaluative judgment, essentially part of fact finding, as is underlined by the fact that, immediately before the words in quotation marks, I said “In my judgment, for the reasons which follow … ” Appellate courts will not interfere with evaluative judgments, unless compelled to do so: see egFAGE UK Ltd v Chobani UK Ltd [2014] EWCA 5, [114]; R(Z) v Hackney LBC [2020] 1 WLR 4327, [56], [74]. I see no real prospect of that here.[27]The second ground of appeal is that I “was wrong to break down the ‘Representations’ into indicative and subjunctive/imperative statements and to disregard the latter” (at [47]-[50]). The claimant suggests that I was criticising as “infelicitous” the description of the statements made as “representations”, because some of them were requests or commands. This misses the point. I was not criticising the description. The complaint was that the solicitors had said things that they knew to be untrue. But you cannot tell lies in making a request or issuing a command. Moreover, I expressly went on (at [51] and following) to deal with the position if indeed I were wrong to break down the ‘Representations’ into indicative and subjunctive/imperative statements. There is nothing in this ground.[28]The third ground concerns alleged “errors in relation to ‘interference’.” There are two points. The first is that my “finding that there could be no arguable ‘interference’ with the administration of justice” was vitiated by my “mischaracterisation” of the claimant’s case and the “failure to take into account the entirety of the statements complained of in the 3 emails”. The claimant expressly referred back to the second ground above. The allegation of “mischaracterisation” is not understood, and I cannot give permission for a ground which I do not understand. But, to the extent that this point depends upon the second, it must fail.[29]The second point is that (at [50]) I was “wrong to hold that there could be no interference in circumstances where ‘The IPO alone had the power to decide to register, it knew exactly what the legal position was, and acted in accordance with its own internal guidance at the time … ’.” (In fact, I dealt with this in more detail at [39].) This is an attempt to appeal against my findings of fact. But the appellant court will not interfere with that unless it is satisfied that I was plainly wrong i.e., that though the decision was one that no reasonable judge could have reached: see Volpi v Volpi [2022] 4 WLR 48, [2]. The claimant goes on to say that “The IPO acted unlawfully in failing to register the mark and could have been judicially reviewed.” That was not a matter argued before me, and I did not decide it. There is nothing in this point.[30]The fourth ground concerns alleged “errors in relation to ‘impropriety’.” There are two main points made. The first is that (at [51]-[52]) I mischaracterised the impugned communications “as submissions about the meaning and effect” of the order of the High Court. I did not. The first five lines of [52] make clear that my view was that submissions that an order of the court should not yet be implemented for some reason or another were, in this context at least, not improper. There was nothing about “submissions about the meaning and effect” of an order.[31]The second point is that my rejection of the claimant’s case on impropriety was vitiated by my finding at [40] that “there is simply no real prospect of showing at the hearing of this contempt application that [the third and fourth defendants] were doing otherwise” than asking the IPO to implement its own guidance. The claimant says I was wrong to make that finding because the emails made no reference to the guidance or to the practices of the IPO, and the third and fourth defendants did not give evidence.[32]But the words in quotation marks above in my judgment were preceded by the words “They do not refer to that guidance in their emails. However, given the wording of the Manual at that time, the terms of Dr Porter’s decisions, and their own position as specialist IP lawyers … ” The third and fourth defendants could not be obliged to give evidence, and had chosen not to. Realistically, the court was never going to hear from them. Accordingly, the only material before me on which I could make a finding was the emails, the manual, the decisions of Dr Porter and their own experience as IP lawyers. That is the material which I referred to, and on that basis I was entitled to make my finding. Once again, the claimant is simply challenging my finding of fact, and I see no real prospect of an appellant court overturning it.[33]On the basis of these two points, the claimant says that “on present evidence, it is at least arguable, with a realistic prospect of success, that the Contempt Respondents’ interventions were improper”, and that I should have so found. But the claimant is simply saying that another judge on the same material might have reached a different conclusion. That is not enough.[34]The fifth ground concerns alleged “errors in relation to mens rea”. The claimant says that my conclusion (at [53]) that “there is no real prospect in the present case of showing that [the third and fourth defendants] acted with the relevant mens rea” is vitiated by my finding (at [40]) that “there is simply no real prospect of showing at the hearing of this contempt application that [the third and fourth defendants] were doing otherwise” than asking the IPO to implement its own guidance. The claimant argues that that finding was not open to me, for the reasons given under the fourth ground. But I have already explained why that ground goes nowhere, and that there was sufficient evidence for me to make that finding. Since the fourth ground fails, so does the fifth. I also note that the mens rea point was strictly unnecessary anyway, as stated in my judgment (at [53]).[35]Accordingly, since none of these five grounds has any real prospect of success, I cannot give permission to appeal on any of them. The claimant did not suggest that there was any other compelling reason for an appeal, and I therefore dismiss the application.

order

Thakkar v Mican [2024] EWCA Civ 552.