Saint-Gobain Pam SA v Fusion Provida Ltd & Anor

A successful respondent may recover all the costs of an appeal, including the costs of a proper respondent’s notice, even where the notice itself does not succeed. No reduction is required merely because the respondent’s notice was unsuccessful. The Court of Appeal may decline to assess costs summarily. Interest on costs in that court may be ordered at the judgment rate, while interest on costs incurred below should be addressed to the first-instance judge. A certificate of contested validity need not be issued again on appeal where the first-instance judge has already made that order. Permission to appeal to the House of Lords is a matter for that House.

The defendants, Fusion Provida Limited and Electrosteel Castings Limited, appealed from a decision of Mr Justice Pumfrey in the Patents Court. The Court of Appeal’s supplied judgment concerns consequential costs and related applications following the appeal. The issues were whether the successful respondent should recover the costs of its respondent’s notice, whether costs should be summarily assessed, whether interest should be ordered on costs incurred below, whether a certificate of contested validity should be issued, and whether permission to appeal should be granted.

Lord Justice Peter Gibson delivered the judgment of the court.

1. Costs of the appeal. The respondent’s notice was a proper notice, although it did not succeed. The successful respondent was therefore awarded all the costs of the appeal, including the costs of the respondent’s notice. No discount was made for the notice’s lack of success.
2. Assessment and interest. The Court of Appeal considered the case unsuitable for summary assessment of its own costs. The parties agreed that interest on those costs should run at the judgment rate. The court declined to order interest on the costs of the action before Mr Justice Pumfrey, leaving that matter, if necessary, to be taken up with him.
3. Certificate of contested validity. Although the court was asked to grant such a certificate, and the judge had already made that order, the Court of Appeal considered it inappropriate to make a further order itself.
4. Permission to appeal. The Court of Appeal declined to grant permission to appeal. The question of permission was left to the House of Lords.

1. Court of Appeal (Civil Division): determined the consequential costs and related applications. The successful respondent received all appeal costs, including the respondent’s notice.
2. High Court of Justice, Chancery Division, Patents Court: decision of Mr Justice Pumfrey from which the appeal arose; citation not stated in the judgment.