Phonographic Performance Ltd v Hamilton Entertainment Ltd & Anor [2013] EWHC 3801 (IPEC)

Case No CC11P04122[2013] EWHC 3801 (IPEC)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
INTELLECTUAL PROPERTY ENTERPRISE COURT
Venue The Rolls Building, 7 Rolls Buildings, Fetter LaneDate 03/12/2013
London EC4A 1NL
Before
MR JUSTICE BIRSS
Between
PHONOGRAPHIC PERFORMANCE LIMITEDClaimant(1) HAMILTON ENTERTAINMENT LIMITEDDefendants(2) MAXIMILLIAN HAMILTONDefendant
Thomas St Quintin (instructed by Hamlins) for ClaimantEngleharts for DefendantsOn paper
JudgmentMr Justice Birss :
[1]On 11th November 2013 I handed down judgment dealing with and assessing the costs in this case. It contains an error of law. The error is in paragraph 8 in which I held that the scale limits applicable in the Intellectual Property Enterprise Court after 1st October 2013 applied to the costs the subject of the assessment even though the action had commenced before 1st October 2013. The error was mine. It was only picked up after the judgment had been handed down but, since it was picked up before the relevant order was sealed, the court retains a jurisdiction to reconsider the point (Re Barrell Enterprises [1973] 1 WLR 19 CA and Stewart v Engel [2000] 1 WLR 2268). I do not need to consider the scope of the jurisdiction because once the error had been noticed, both sides agreed that the judgment and the order should be varied accordingly and also agreed how that should be done.[2]The error is that the earlier judgment does not take account of Paragraph 25 of CPR Update 66 which provides as follows:
“Transitional and saving provisions 25. In respect of the amendments made to Practice Direction 45 – Fixed Costs by paragraph 24)(d)— (a) those amendments shall only apply to proceedings started in the Intellectual Property Enterprise Court on or after 1st October 2013, and (b) Table A and Table B in Practice Direction 45, as they applied on 30th September 2013, shall continue to have effect in respect of any proceedings started in a patents county court which are continued in the Intellectual Property Enterprise Court.”
[3]The clear effect of this provision is that the updated scale limits tables which came into force in the Intellectual Property Enterprise Court on 1st October 2013 do not apply to this case since this action was started before 1st October 2013. Accordingly by paragraph 25(b), the former scale limits applicable in the Patents County Court up to and including 30th September 2013 remain applicable in this case. The transitional provision also means that the ability to recover court fees separately under r45.31(4A)(a) does not apply to this case, since it was brought by one of the amendments referred to in paragraph 25(a).[4]This has the consequence that the table of costs I included at paragraph 9 of the judgement is wrong since it was based on the wrong scale limits. The parties were agreed what the right table should be. It is: Stages actual Summary assessment PCC scale Defendants' proposal Revised Award Prior to transfer to the PCC £8,246.65 £8,246.65 N/A £4,000 £8,246.65 Application of 8 March 2011 £1,003.00 £1,003.00 £2,500.00 £175.00 £1,003.00 Application of 17 Dec 2012 £617.00 £617.00 £2,500.00 £0.00 £617.00 CMC £2,914.50 £2,914.50 £2,500.00 £1,700.00 £2,500.00 Disclosure £5,282.00 £5,282.00 £5,000.00 £1,000.00 £5,000.00 Application 24 June 2013 £2,044.50 £2,044.50 £2,500.00 £1,000.00 £2,044.50 Application 5 August 2013 * £3,505.00 £3,505.00 £2,500.00 £1,000.00 £3,505.00 Witness Statements * £7,562.50 £7,562.50 £5,000.00 £2,550.00 £5,000.00 Application 11 July 2013 £1,870.00 £1,870.00 £2,500.00 £800.00 £1,870.00 Trial and Costs hearing * £18,797.09 £12,530.14 £15,000.00 £5,650.00 £12,530.14 Court fees £955.00 £955.00 n/a n/a n./a Total £52,797.24 £46,530.29 £40,000 £17,875.00 £42,316.29[5]The differences between this table and the one in the judgment are that the column for the PCC scale has been corrected to reflect the right limits and the consequential changes to the awards have been made. The only detailed changes to the figures awarded which have proved necessary are: i) To reduce the award for the CMC from £2,914.50 to £2,500; ii) To reduce the award for disclosure from £5,282 to £5,000; iii) To reduce the award for witness statements from £6,000 to £5,000; iv) To remove the separate award of court fees.[6]These changes mean that the overall sum to be paid is reduced from £44,967.79 to £42,316.29 and so paragraph 30 of the judgment is wrong in that respect.[7]Neither party suggested that these alterations made any difference to the reasoning in the judgment. I agree. I note that paragraph 22 was based on the wrong scale limits, but the reasoning is the same if I base it on the correct scale limits (£6,125 + £2,500 = £8,625). The costs incurred in the High Court were not much more than the applicable scale limits.[8]Thus the correct sum which the defendants ought to pay the claimant’s in costs is £42,316.29. The order I will make will recite that it is paid within 14 days.

Cited in 1 later judgment