Monday, 11 October 2010

Costs: Amsterdam "nearer Newport" than other parts of UK, rules IPO

From Amsterdam ...
In Loadhog Ltd v Polymer Logistics BV, BL O/337/10, 29 September 2010, the UK's Intellectual Property Office was faced with a challenge to a costs claim in favour of Polymer, the defendant patent proprietor, in failed revocation proceedings. Polymer's costs claim applied the "evidence" element set out in Tribunal Practice Notice 4/2007 ("Preparing evidence and considering and commenting on the other side's evidence") in respect of each piece of evidence filed in the proceedings. The IPO hearing officer held that this was not the way the scale was meant to be applied and that the evidence element of any costs order should be between £500 and £2,000 in total, not per item: in general, if any item in the table was applied more than once in any award of costs, this would defeat one of the fundamental purposes of the published scale -- predictability of costs.

One area in which Polymer did succeed was in its costs claim for the cost of importing and accommodating a Dutch expert witness, who arrived at Newport in rather unusual circumstances:
... to Newport, by boat?
"7 I have examined the travel and accommodation expenses for the defendant’s expert witness, and I am satisfied that they are reasonable in the circumstances. I have therefore awarded the full amount sought in this category. The claimant has commented that the mileage element of Mr ten Bok’s travel expenses is high because the claimant chose to rely on an expert witness from Holland. I don’t know where in Holland Mr ten Bok lives, but I note that Amsterdam (roughly in the centre of Holland) is closer to Newport than some parts of the UK.

8 Moreover it is likely that when the defendant chose Mr ten Bok as their expert witness for this case, they anticipated that he would fly to the UK if required to attend a hearing. (In the event, when the time came for Mr ten Bok to attend the hearing to be cross-examined, a cloud of ash from an Icelandic volcano had closed European airspace and he had to drive to the hearing.)

9 The defendant has claimed three nights’ hotel expenses for Mr ten Bok in relation to his attendance at the hearing. Although Mr ten Bok’s cross-examination was concluded during the first day of the hearing, I think it is reasonable that the defendant should want to make sure that he was available during the second day, either to support its legal team or in case he was required to clarify some part of his evidence".

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