Syngenta Ltd & Ors v Chemsource Ltd & Anor

A costs capping order under CPR 44.18 requires all statutory conditions to be satisfied. The court must assess whether there is a substantial risk of disproportionate costs, whether case management and detailed assessment can control that risk, and whether a cap is in the interests of justice. The assessment is broad and cannot be reduced to a numerical comparison. The value of the claim, the parties’ conduct, the stage of proceedings and the costs already incurred are relevant. Even where costs appear disproportionate, the court may leave control to the trial judge if retrospective assessment is more reliable. Procedural disclosure and confidentiality applications must also be necessary and proportionate at the stage reached.

The claimants brought proceedings concerning alleged patent, trade mark and passing off infringement arising from the defendants’ dealings in azoxystrobin products. The defendants sought a costs capping order limiting the claimants’ future recoverable costs, together with further information and disclosure concerning the provenance and testing of product samples. The claimants sought permission to amend their pleadings to rely on an additional sample and sought specific disclosure concerning communications with the Chemicals Regulation Directorate.

The court had previously ordered a preliminary trial of issues concerning the source, genuineness and scope of protection of the relevant azoxystrobin consignment. The applications required the court to determine whether the costs-capping conditions were satisfied, whether disclosure of the distributor’s identity and related documents was necessary and proportionate, and whether the proposed amendment should be permitted.

1. Costs capping. The defendants’ application was refused. The value of the SPC claim was modest, and the estimated costs were prima facie disproportionate. However, the court was not satisfied that a costs cap was in the interests of justice. The trial judge would be better placed after trial to assess whether costs were unnecessarily incurred or were caused by the defendants’ limited admissions and approach to the litigation.
2. Under CPR 44.18, the court must consider whether there is a substantial risk of disproportionate costs and whether that risk cannot adequately be controlled by case management or detailed assessment. The principal yardstick is the value or worth of the litigation, considered alongside the other side’s costs, but a broad overall evaluation is required. Commercial significance, the burden of proving the claim, the conduct of the parties and the inherent cost of resolving the issues may all be relevant.
3. Costs capping is not automatically appropriate merely because the claim is small or the parties’ financial positions are unequal. The court must also consider the stage reached, costs already incurred, future costs, and whether the trial judge can achieve better justice retrospectively. The refusal of a cap was not an endorsement of the claimants’ proposed expenditure.
4. Information and disclosure. Disclosure of the distributor’s identity and related provenance documents was adjourned. The alleged contamination or tampering was speculative, witness evidence was imminent, the distributor’s confidentiality had been undertaken, and disclosure was not yet strictly necessary or proportionate. The privilege claim was also insufficiently particularised; any maintained claim had to be supported by a more specific witness statement or affidavit.
5. Amendment and further disclosure. Permission was granted to amend the pleadings to rely on the additional sample because the amendment was arguable and would not extend the trial. The proposed disclosure concerning the Chemicals Regulation Directorate was too wide, although a narrower request might be made.