Phonographic Performance Ltd v Hamilton Entertainment Ltd & Anor

Costs limits in the Intellectual Property Enterprise Court depend on when proceedings were started. Transitional provisions preserving the former limits continue to apply where proceedings began before 1 October 2013. The later scale limits cannot be applied retrospectively. The same transitional provisions may also prevent separate recovery of court fees where that recovery was introduced by the amendments. A court may reconsider an error in a judgment before the relevant order is sealed, although it need not determine the full scope of that jurisdiction where both parties agree to the correction.

The court corrected an earlier costs judgment handed down on 11 November 2013. The earlier judgment had applied the Intellectual Property Enterprise Court’s post-1 October 2013 scale limits to proceedings begun before that date. The parties agreed that the judgment and order should be varied to apply the former Patents County Court limits and to remove the separate award of court fees. The issues were the proper effect of the transitional provisions and the resulting amount of costs payable.

1. Jurisdiction to correct. The court held that, because the relevant order had not been sealed, it retained jurisdiction to reconsider the error. It cited Re Barrell Enterprises [1973] 1 WLR 19 CA and Stewart v Engel [2000] 1 WLR 2268. Since both parties agreed the judgment and order should be varied, it was unnecessary to determine the wider scope of that jurisdiction.
2. Applicable costs limits. Paragraph 25 of CPR Update 66 provided that the amendments to Practice Direction 45 – Fixed Costs applied only to proceedings started in the Intellectual Property Enterprise Court on or after 1 October 2013. For proceedings started earlier and continued in that court, the tables applying on 30 September 2013 remained in force. The former scale limits therefore applied.
3. Court fees. The transitional provision also meant that the ability to recover court fees separately under r45.31(4A)(a) did not apply, because that right was introduced by the amendments covered by paragraph 25.
4. Result. The costs table was revised. The award was reduced from £44,967.79 to £42,316.29, including reductions for the case management conference, disclosure and witness statements, and removal of the separate court-fee award. The defendants were ordered to pay £42,316.29 within 14 days.