Xena Systems Ltd v Cantideck & Another  EWPCC 1 (18 January 2013) is a fairly long (121 paragraph) ruling in the Patents County Court from Judge Colin Birss QC on an inquiry into damages for patent infringement.
Judge Birss QC was careful not to define what may amount to an “abuse of the Court’s process”. However, he was satisfied that there had been an abuse of the Court’s process by the defendants in this claim, given the defendants’ failure to provide disclosure in relation to the recall and modification of infringing platforms, after the defendants had been ordered to disclose such documents at the Case Management Conference. The court also found that a letter sent by the defendants before the inquiry was an abuse of process as it claimed that the total number of infringing platforms dealt with by the defendants was 17 when it had in fact been 38.
After hearing submissions on costs, Judge Birss lifted the cap on costs and awarded Xena its costs of the inquiry, which were summarily assessed (at the parties’ election) on an indemnity basis. The burden of showing that there had been an abuse of the court’s process was higher than that required to award costs on the indemnity basis, so the award of costs on an indemnity basis followed naturally from the finding of abuse.
While the Patents County Court continues to offer significant protection on costs for litigants, this case is a clear example of the Court’s willingness to remove that protection in order to deal with the conduct of a party, where appropriate.
Thanks go to DMH Stallard, solicitors, for drawing the attention of PatLit to this decision. DMH Stallard acted for the successful claimant in these proceedings.