Rockwater Ltd v Coflexip SA & Anor

Costs must be assessed proportionately in the circumstances of the litigation as a whole. Proportionality operates at both ends of the scale: parties in substantial litigation may reasonably incur significant expenditure when the sums and risks at stake justify vigorous preparation. The costs of models and animations may be recoverable where they provide useful assistance at trial and their production was reasonable. Their possible usefulness on appeal is a matter for the appellate court, not the first-instance judge. Costs should not ordinarily be disallowed merely because a successful party lost on some issues, abandoned an item of prior art, or relied on evidence that later proved unnecessary.

The judgment concerned costs following a substantial patent action between Rockwater Limited and Coflexip. Coflexip challenged the recoverability of the costs of a working model of the Recalde prior art and related animations, estimating the model’s cost at about £50,000, together with legal-team supervision costs. Other disputes concerned abandoned prior art and the necessity or relevance of evidence. The central issue was whether those costs were reasonable and proportionate in the circumstances of the trial.

1. Costs of demonstrative material. The court assessed the model and animations by reference to their usefulness at the trial before it, rather than their anticipated usefulness to the Court of Appeal. The model was a convenient and useful visual aid for understanding the dense Recalde United States specification and the pipelaying equipment.
2. Proportionality. Proportionality operates both ways. Although parties must avoid expenditure exceeding what a small case merits, substantial expenditure may be reasonable where the value at stake and the consequences of defeat are very significant. Here, the claim included potentially millions of pounds and relief that could have required delivery up or destruction of the pipelaying equipment and possibly the vessel itself. It was therefore inevitable that Rockwater would defend the claim with considerable vigour and thoroughness.
3. Other disputed items. Costs assessment at the end of a substantial trial is not an exact science. A successful party will rarely succeed on every issue or confine itself exclusively to matters ultimately found useful. The court found no sufficient reason to disallow the other disputed costs.
4. The costs of the action were awarded to Rockwater, with the costs to be assessed.