Hasbro Consumer Products Licensing Limited & Anor v Công Ty Tnhh Ðàu Tu Công Nghe Và Dich Vu Sconnect Viet Nam & Ors [2026] EWHC 2071 (Ch)

[2026] EWHC 2071 (Ch)Case No IL-2022-000010IN THE HIGH COURT OF JUSTICEBUSINESS AND PROPERTY COURTS OF ENGLAND AND WALESINTELLECTUAL PROPERTY LIST (ChD)Venue The Rolls Building 7 Rolls Buildings, Fetter Lane London EC4A 1NLDate Friday, 24 th July 2026
Before
MASTER BRIGHTWELL
Between
(1) HASBRO CONSUMER PRODUCTS LICENSING LIMITED(2) ASTLEY BAKER DAVIES LIMITEDClaimant(1) CÔNG TY TNHH ÐÀU TU CÔNG NGHE VÀ DICH VU SCONNECT VIET NAMalso known as SCONNECT CO. LTD.(a limited liability corporation incorporated under the laws of the Socialist Republic of Vietnam)(2) SCONNECT MEDIA LLC(a corporation incorporated under the laws of the State of Delaware, United States of America)(4) MANH HOANG TADefendantMR GWILYM HARBOTTLE (instructed by Brandsmiths) for Claimants for THE DEFENDANTS did not appear and were not represented
Approved JudgmentTranscript of the Stenograph Notes of Marten Walsh Cherer Ltd.,2 nd Floor, Quality House, 6-9 Quality Court, Chancery Lane, London WC2A 1HP.Telephone No: 020 7067 2900. DX 410 LDEEmail: info@martenwalshcherer.comWeb: www.martenwalshcherer.com

MASTER BRIGHTWELL:

[1]On 3 October 2024, I heard two applications: first, an application dated 20 September 2023 by the claimants, seeking permission to amend the particulars of claim, and a second application dated 17 April 2024, also by the claimants, for permission to substitute the current claimants for the original claimants.[2]The applications first came on for hearing on 18 July 2024, before Deputy Master Bowles, but that hearing was ineffective. The applications then came on again for a hearing before me on 3 October 2024, as I have said.[3]The substitution application was settled by consent at or shortly before that hearing. The substitution order was sealed on 30 October 2024 and, it seems to me in error, states also that it was made on that date. It is clear from the transcript of the October 2024 hearing that the consent order was approved by the court at the hearing. Paragraph 6 of the order states:
"All questions as to the costs of the Substitution Application are adjourned to be determined at the same time as the costs of the Amendment Application."
[4]At the hearing, I heard essentially a day of argument on the amendment application, with the defendants pursuing a number of objections to the proposed amendments. At the conclusion of the hearing, I directed the parties to communicate with each other on a small number of matters, one being whether further amendments were required relating to the particularisation of the infringement claim concerning artistic works, including the question whether individual elements required to be better particularised.[5]The amendment application was subsequently compromised by an order made on 6 May 2025, some months after the hearing. After initially adopting different positions regarding the costs of the amendment application, the parties compromised those differences for the sake of enabling the claim to proceed, agreeing that the costs of the application would be determined at the costs and case management conference in the claim.[6]One effect of this was that the amendment application was ultimately resolved by consent, without my having to rule on it, even though it had been fully argued at the October 2024 hearing.[7]It was thus initially intended that these costs issues would be resolved at the CCMC, listed for 4 and 5 December 2025. In the event, that hearing before Richard Smith J and me was not used as a CCMC, at least partly because the claimants had issued an application for summary judgment which remained outstanding.[8]The claimants pursued an application for an unless order, based on a costs order made by the judge at an earlier hearing. At a subsequent hearing on 16 March 2026 we directed, for reasons given on that occasion, that outstanding costs issues should be determined before the unless order application could proceed.[9]There are now three separate elements to consider: the costs of the amendment application itself; the costs flowing from the amendments made as a result of 6 May 2025 consent order; and the costs of the substitution application.[10]Before the hearing this Monday, I received written submissions from both sides and expected both sides to appear. However, as on previous hearings, the court received a communication on the morning of the hearing indicating that an interpreter was not available and the defendants would not attend. The defendants submitted a further note, described as a "brief note", in relation to the costs hearing. In accordance with the request of the defendants in their communication I proceeded to hear the application, hearing from Mr Harbottle and I make clear I have also considered in detail the written submissions which have been filed on behalf of the defendants.[11]Turning to the amendment application, by way of background, there was quite a delay between the issue of the amendment application and its coming on for hearing. As I have said, the application was issued in September 2023, having first been intimated some four or five months earlier and was at that point accompanied by a first draft amended particulars of claim.[12]Further amendments were served before the 2024 hearings, on 13 September 2023 and on 19 April, 2 May, 3 June, 5 July and 8 July 2024. The final version of the amended particulars of claim was then served after the hearing, on 21 February 2025, and that constituted the document for which permission was ultimately granted by consent[13]Mr Harbottle estimated that around 50% of the time spent by the claimants' legal team in working on the amendments related to matters which post-dated the issue of the claim. That is so particularly, it seems to me, or must be in relation to the first set of amendments circulated in September 2023. He submitted that a different approach to costs arising out of amendments is justified in relation to such matters. I will not read them out, but the matters relied on by the claimants in that regard are set out in paragraph 30 of the claimants' skeleton argument. This includes, for instance, provision of schedules of post-issue infringements.[14]The claimants' position is that the defendants should pay the costs of the substitution and amendment applications. Mr Harbottle accepts that the claimants should pay the costs thrown away by the amendments, but not all of the costs incurred in responding to the amendments as this may over-compensate the defendants, particularly in so far as they relate to matters introduced into the claim by reference to events after the claim was issued. The claimants rely on Lendlease Construction(Europe) Ltd v AECOM Ltd [2022] EWHC 2855 (TCC), paragraph 5.[15]Mr Harbottle also relied on the principle that where a party significantly amends its case, it may be appropriate to reserve the costs up to that point to the trial judge. He cited Chadwick v Hollingsworth(No. 2) [2010] EWHC 2718 (QB). As I discussed with him at the hearing, that principle does not appear to be material here. The claimants narrowed some of the allegations in relation to audio clips in anticipation of the summary judgment application, which has now been issued and determined in their favour and in relation to which the consequentials hearing is to take place immediately after this ruling has concluded. The claimants did not present a wholly new case through their amendments; nor do the defendants suggest that they did.[16]The defendants' position is that the costs of both applications should be paid by the claimants on the indemnity basis. Their position is neatly summarised in the further note submitted on their behalf on the morning of the hearing as follows: in relation to the substitution application, they submit that the substitution was necessitated by the claimants' own corporate reorganisation. The defendants did not oppose it, they say, but reasonably required undertakings as to disclosure and costs, which were provided, whereupon the defendants consented. The claimants' claim for standard costs out of the substitution is not made out.[17]On the amendment application, the defendants submit that the amendments were necessitated by deficiencies in the claimants' original pleading. At least seven, and repeatedly revised, drafts were served over some 18 months, including approximately 900 pages of schedule additions. The court has already recorded that the resulting delay was the claimants' own. The defendants say that they consented to the final form only on the express condition that the claimants pay the costs of the application.[18]I note as well that the defendants rely on matters relating to conduct. They say that the claimants issued repeated take-down notices against Wolfoo videos on YouTube from 2022 onwards, before any adjudication of infringement, resulting in the removal of more than 3,000 videos against a pleaded sample of 91, with consequent disruption to the defendants' business and loss of revenue and commercial opportunity. The defendants submit that this is properly to be regarded as an important circumstance in the overall assessment of the costs issue.[19]The effect of the parties' ultimate agreement on the amendment application is, as I have said, that I did not need to resolve points that were in dispute or had been in dispute on the amendment application. I am thus being asked to determine the costs of an application that had been resolved by consent.[20]Mr Harbottle relied in his skeleton argument on part of a recent decision of Joanna Smith J and Master Kaye, Harrington& Charles Trading Company Limited (in Liquidation) v Mehta [2026] EWHC 387 (Ch), paragraph 12 onwards. This is as to the approach of the court to questions of costs when the parties have resolved their underlying dispute on a claim or application, but still wish the court to resolve a dispute between them as to the costs of the claim or application. Master Kaye said this, from paragraph 12 onwards:"12. The court has a very broad discretion in relation to costs, which includes whether to exercise its discretion to make an order for costs at all. If it decides to make such costs order at all, it needs to identify who is the successful party, and whether to apply the general rule that the unsuccessful party pays the successful party's costs, or whether there are some factors or reasons why the general rule should not apply and a different order should be made. See CPR 44.2(1) and (2). This is approached on a broadbrush commonsense basis which looks at the overall balance between the parties and the substance and reality of who was the overall successful party.13. That, of course, highlights the difficulty where the substance of an application has been compromised, but the parties have not agreed the incidence of costs.14. Where an application has been compromised, as I have alluded to at previous hearings, it is rarely appropriate for the court to engage in the underlying merits of that application. The court should be alive to the fact that parties compromise applications for many different reasons, sometimes pragmatic and commercial, and they should be encouraged to do so rather than penalised for doing so.15. It is neither reasonable, proportionate nor consistent with the overriding objective to have an arid debate about what the outcome might have been if the application had been fully argued. It is not our role to make predictions about what the outcome would have been if the application had been argued. It wastes both the parties' and the court's valuable resources. Indeed, even the costs submissions we have heard today have already taken up about an hour and a half16. That is why, where an application has been compromised and only the costs remain outstanding, the court may consider that it is fairer as between the parties either to decline to decide the costs at all or to make no order as to costs, particularly where the answer is not obvious.”[21]Then after citing other authority, at paragraph 19:
"19. If the court considers, for example, that it is plain and obvious what the outcome would have been, it may be prepared to consider making a costs order, but even then, it will only do so by taking a high-level and broad-brush approach."
[22]Even though, after he had made his submissions, Mr Harbottle did not continue to rely on this decision, suggesting in light of the submissions made that the court will be able to make a positive decision as to costs, the principles that I have just described seem to me to be material and fall to be taken into account by me in circumstances where I did not have to determine the amendment application. I consider that I should bear them in mind.[23]The fact that the cost of the application were reserved to be determined at a later date does not, however, as the defendants suggest, change the position in that regard. I would say at this point I am also satisfied that the parties did not compromise costs and the fact that the defendants at one stage in the parties' negotiations sought to impose a requirement that the claimants pay their costs as a condition for a consent order, was not accepted by the claimants and was not reflected in the consent order which was ultimately made.[24]As Mr Harbottle reminded me, there were a number of points of opposition taken by the defendants to the amendments in the form in which they were before the court as at October 2024. He took me at the hearing on Monday to some of points made in the defendant's skeleton argument for that hearing and argued that the defendants' opposition to the application was wholly unreasonable.[25]For example, he showed me paragraph 48 of the defendants' skeleton argument, where it was said that the description of the graphic work being Peppa Pig herself was not adequately described in the description in paragraph 26A.1 of the then draft amended particulars of claim, where the defendants said it did not match the design in Schedule 3A. As Mr Harbottle said, there was pleaded a clear description, being Peppa Pig as the pig in a red dress, being reproduced in the top section of the first page of Schedule 3A and that this did not leave doubt as to what was intended.[26]The defendants' skeleton argument for the application hearing said that it was unclear whether the image intended to be relied upon for the purpose of authorship, title and infringement was that image and whether the image that would be relied on at trial was the one shown on the top of that page or not. It seems that to me it was clear what image was referred to.[27]I also consider that in referring to authorship and title, this was a part of the defendants' position at the hearing, despite having consented to the substitution application, that title to copyright was not adequately pleaded. On this point, I would agree with Mr Harbottle that as to the chain of title, the defendants have never pleaded an alternative chain of title confining themselves to generalised and unexplained complaints about the level of redaction of the title documents.[28]Furthermore, there does seem to me to be force in the claimants' submission made now as it was in October 2024 that the defendants were seeking to repeat much of their opposition to the amendments on the grounds that a copyright infringement claim can proceed only if ever copyright work is both identified and produced. Chief ICC Judge Briggs rejected that argument in his judgment on the jurisdiction challenge and Richard Smith J has done likewise in his judgment on the summary judgment application at paragraph 48.[29]A very large number of points were taken by the defendants and it does not seem to me that it is practicable to determine whether all of the points taken in opposition at the October 2024 hearing were wholly unreasonable or unreasonable or would have failed if the matter had been determined by a ruling rather than by consent.[30]Nor does it seem to be necessary or appropriate for the court to seek to do so. This is for the reason explained in Harrington. The court should not engage in the underlying merits of the application where it has been compromised, except where it is clear or plain and obvious what the outcome would have been.[31]However, in light of the fact that the application was fully argued, and of the observations that I have made about two of the substantial points pursued by the defendants, it seems to me that I can be satisfied on the sort of broad-brush basis described by the court in Harrington that the amendment application would at least have substantially succeeded if it had been determined by judgment rather than by consent.[32]When I refer to the fact that the application was fully argued, I mean I consider that I can take into account the fact that the defendants subsequently consented to the final version of the amended particulars of claim, thus implicitly waiving many of their prior objections to the amendments.[33]On this basis, I can be (and am) satisfied that the claimant would have been and can in all the circumstances be considered to be the successful party. The general rule and starting point on costs is that the unsuccessful party should pay the successful party's costs, but the court may make a different order. CPR rule 44.2(4) says: "In deciding what order (if any) to make about costs, the court will have regard to all the circumstances, including –(a) the conduct of all the parties;.(b) whether a party has succeeded on part of its case, even if that party has not been wholly successful ...".[34]There are two factors pointing against making an order that the defendants pay the claimants’ costs or at least making an order that they pay all of the claimant's costs of the amendment application, which in my view do not detract from the characterisation of the claimants as the successful party overall.[35]First, it did, as the defendants remind me, take an inordinately long time for the amendments to reach their final form. The defendants' solicitors and counsel were required to consider a number of iterations over a long period. It seems clear enough to me that each new version was not merely responding to new objections from the defendants which might be said to be unreasonable and, as Mr Harbottle conceded, some amendments were made to facilitate the application for summary judgment.[36]This iterative approach will have had two effects. The defendants will have incurred greater costs than they would have done if the amendments had been presented together and over not such a long period and the claimants themselves will have incurred greater costs and it would not be fair to require the defendants to pay all of them. I do not consider that any unfairness in this regard would necessarily be removed simply through the process of detailed assessment.[37]I do not overlook in saying this that there was a delay at the outset and before the process of amendment began, through the jurisdiction challenge that was mounted by the defendants and resolved by Chief ICC Judge Briggs.[38]The other factor is that I gave an indication at the October 2024 hearing in relation to artistic works, that I was not at that point satisfied that the background works and individual elements were adequately identified and that further amendments were likely to be required and I thus invited the parties to discuss the point and, if necessary, make further submissions.[39]In the event, without making further submissions, the claimants agreed to make further amendments dealing with that issue and those amendments were substantial. I do not consider I should proceed on the basis that the claimants were successful on that point, although of course that was one point out of several.[40]One option that I discussed with Mr Harbottle on Monday was that of reserving part of the costs of the amendment application to the trial judge or ordering that some of the costs be costs in the case. On reflection, I do not consider that this would be the correct approach. I consider that I should proceed on the basis that the defendants' opposition was at least in part reasonable and that they incurred costs in dealing with an application which they should not have to meet, which should be reflected in the costs order that is made, for reasons that I have given.[41]The correct course in my view is to make a reduction to the costs recoverable by the claimants, to take account both of the further amendments on the artistic works and of the number of iterations which had to be considered. As the case law makes clear, this will have to be on a broad-brush basis.[42]I consider the appropriate way to do this is to make a percentage reduction to the costs which are payable by the defendants. In doing so, I take into account the matters I have set out above, in particular the fact I treat the claimants as the successful parties but that they should be deprived of some costs and that the way in which their case emerged meant that the defendants incurred some costs which they might have otherwise avoided.[43]The point I have mentioned concerning the particularisation of the artistic works where complaint of infringement was made was a substantial issue, but one of a number of points. Taking all of this into account, the view I have reached is that the defendants should be ordered to pay 60% of the claimants' costs of the amendment application, to be assessed on the standard basis if not agreed. That will, of course, not include the costs of preparing the amendments themselves.[44]I make clear that I have taken into account the points made by the defendants in their written submissions. For the reasons I have given, whilst there was an element of the claimants' conduct of the application which might be characterised as unreasonable, that does not apply to the conduct of the application as a whole. In light of my conclusion that the claimants are to be viewed as the successful parties, it would not be a correct exercise of my discretion to order all of the defendants' costs to be paid by the claimants and certainly not on an indemnity basis.[45]Any conduct issues which the defendants wish to raise about take-down notices are not matters relating to the costs of the amendment or for that matter the substitution applications. The complaints made by the defendants about the claimant's conduct of the litigation since the defendants have been acting in person are matters that post-date the costs with which I am presently concerned and if those complaints are relevant they should be raised when the costs of that later period are in issue.[46]As far as the costs consequential on the amendments are concerned, I have indicated that the claimants agree to pay those costs on the standard basis, subject to assessment. Mr Harbottle stressed that they should be limited to costs thrown away and not cover all costs consequential on the amendments, which might lead to more recovery than that to which the defendants should be entitled in principle. He commented on the limited nature of the amendments which the defendants made in their amended defence and on the fact that the document was produced after the defendants had begun to act as litigants in person. Those points, it seems to me, are ultimately a matter for assessment.[47]I have taken into account the fact the amendments were provided in a number of stages in the reduction I have made to the recoverable costs of the application itself. I do not consider that the costs incurred by defendants in considering the amendments simply for the purpose of deciding whether or not to consent to them to be costs occasioned by the amendments. They were in principle part of the cost of the application itself.[48]I am going to order that costs of and occasioned by the amendments incurred after the date of the Consent Order resolving the amendment application be paid by the claimants to the defendants on the standard basis. For the reasons explained by Mr Harbottle, those costs may well not be excessive, but that is a matter for assessment.[49]The amended defence does not appear to have made substantial amendments in relation to those matters which the claimants say depend upon developments postdating the issue of the claim. In so far as issues to title are concerned, I consider relevant also to the substitution application that where a claimant is restructured for commercial reasons and the right to pursue a claim is therefore assigned, the defendant should not generally have to bear the costs of amendments which are occasioned as a result.[50]One point on which the amendments are significant is in relation to the joint tortfeasorship claim. That does not rely on post-issue developments on the ground but on the law having been developed in the Supreme Court. I do not consider that a sufficient reason to depart from the general position that costs arising out of amendments should be paid by the amending party. In my view, an order limited to costs thrown away by the amendments is likely to cause difficulty in assessment, it not being the standard form of wording where such an order is made and the costs occasioned by the amendments are appropriately circumscribed by making it clear in the order for the avoidance of any doubt that they will be limited to costs incurred after 6 May 2025.[51]That leaves the costs of the substitution application. Here, the dispute was resolved between the parties shortly before the hearing on 3 October 2024, disputes between them having gone on for some time before.[52]I have already indicated that I consider that the claimants were required to make this application and certainly the costs incurred in preparing it had to be incurred in any event. The claimants submit that the defendants ' response was wholly unreasonable. The points relied on by Mr Harbottle were the fact that an undertaking was sought on disclosure from the original first claimant, which was being removed as a party when, as the claimant submitted, it would have been sufficient to require the substituted claimants to rely on their contractual rights in respect of disclosure. Furthermore, the defendants imposed a requirement that security for costs be provided. Mr Harbottle submitted that both of those were unreasonable requirements but, in the event, the claimants provided the undertakings sought and also provided security for costs.[53]The defendants also objected for a time on the grounds that title had not in fact passed to the substituted claimants, a point raised for the abortive hearing in July 2024 but dropped before the October 2024 hearing.[54]I am going to take this final point shortly. The requirements which the defendants sought as conditions to their consent for the substitution order do not seem, on their face, to have been entirely unreasonable, especially in relation to security for costs, the claimants do not suggest there was any undue difficulty in those conditions being satisfied and they did satisfy them. The parties agreed to compromise this element of their dispute and it was not argued out before me.[55]It may well be the defendants took more points than they needed to, particularly on the question whether the first claimant was in fact the owner of the relevant rights, but I also consider that some of the costs incurred by the claimants had to be incurred in any event. The comments about compromised applications in Harrington, which I have already set out, seem to me entirely apt to describe an appropriate approach in relation to the costs of the substitution application in circumstances where it is not plain and obvious to me that the objections taken by the defendants were wholly unreasonable. I consider that the appropriate order in relation to the substitution application is that there be no order as to costs.[56]So, the orders therefore will be(a) that the defendants do pay 60% of the costs of the amendment application on the standard basis, to be assessed if not agreed,(b) that the claimants do pay the defendants' costs of and occasioned by the amendments incurred in the period after 6 May 2025, and(c) there will be no order for costs on the substitution application. (For proceedings after judgment: please see separate transcript) - - - - - - - - - - -