“What happens to the costs cap in a preliminary issue case? It seems to me the position is clear. This will be a trial and the PCC stages that apply to and include a trial will apply. I realise that that means that if the rest of the case goes forward in the PCC one could end up with two costs caps on one issue of liability. That seems to me to be inevitable as a result of ordering preliminary issues and needs to be taken into account. If that is the right way for this case to go then, in my judgment, that is the correct way to approach the costs cap.”
“[13] Ms May’s submission is that the rule refers to the final determination of “a claim” and that the answer to this problem can be found in the manner in which the CPR uses the word “claim”
“[40] … I believe what is really happening in this case is an example of a psychological phenomenon I have become familiar with in the PCC. When the risk was in the future, the claimant wished to litigate in the Patents County Court to protect herself against the risk of an adverse costs award. That is why proceedings were brought and pursued in this court with this costs regime. The impact of the PCC cap on the claimant’s actual costs if she won was predictable. If the claimant had lost, the costs cap would have been strongly relied on. The claimant was able to enforce her intellectual property rights in this case because of the predictability of the costs cap remaining in place. She was relying on it. Now that the claimant has won, the uncertainty has evaporated. The balance of risk and reward is now entirely different. In today’s circumstances it now seems to the claimant quite unfair that the cap prevents her from recovering a higher share of her costs. But that is because the position after judgment is very different.”