Phonographic Performance Ltd v British Hospitality Association & Ors

In exercising a costs discretion, the court should consider all relevant circumstances and give each proper weight in a principled and proportionate manner. Where parties have each substantially succeeded, that is an important consideration, but the court may make a broad assessment rather than attempt scientific precision. The issues’ difficulty, the reasonableness of the parties’ positions, the issues generating most of the costs, and the significance of particular issues are relevant. Under CPR 52.10(2), the court may exercise the tribunal’s costs powers. A party may properly bear a proportion of costs where its conduct or submissions substantially caused a hearing to take place, even if the tribunal initiated or shaped that hearing.

The judgment concerned the costs of two appeals from decisions of the Copyright Tribunal and the costs of the hearing before that tribunal. The underlying disputes concerned the scope of references under sections 128A and 128B and licensing schemes for the public performance of broadcast sound recordings.

Both parties had succeeded in substantial respects on the appeals. The court therefore had to determine an appropriate allocation of the appeal costs and whether the Interested Parties should recover costs incurred before the tribunal.

1. The court held that the parties’ substantial success on their respective appeals was an important factor supporting an award of costs to each successful party in relation to its own appeal. The issues were difficult and both parties had acted reasonably.
2. The bulk of the appeal costs concerned jurisdiction. The Interested Parties had incurred approximately twice PPL’s costs, and the court considered that figure disproportionate. A fair award was 60 per cent of the Interested Parties’ assessed appeal costs.
3. Under CPR 52.10(2), the court had all the powers of the tribunal. The tribunal’s power under section 151 of the CDPA included power to order one party to pay another’s costs.
4. Applying the guidance in AEI Rediffusion v PPL [1999] 1 WLR 1507, the costs discretion had to be exercised by considering all relevant factors and giving them due weight in a principled and proportionate way.
5. The hearing before the tribunal had been substantially driven by PPL’s jurisdiction point. Although the tribunal had initiated the oral hearing and it involved several case-management matters, justice required PPL to pay 60 per cent of the Interested Parties’ costs of that hearing.

The judgment records that the appeals arose from decisions of the Copyright Tribunal. The High Court determined the costs of both appeals and the costs incurred before the tribunal.