Bocacina Ltd v Boca Cafes Ltd & Ors

In the Intellectual Property Enterprise Court, costs must reflect both the successful party’s entitlement to recover reasonable costs and the objective of encouraging proportionate early settlement. An early offer of substantially all realistic substantive relief may reduce recovery of costs incurred thereafter, even without an offer of costs. The court should consider all the circumstances, including conduct, the merits, the timing and substance of offers, and proportionality. A claimant should not generally pursue a trial merely to recover modest costs, but a defendant who gives in on the substance should make a sensible contribution towards costs.

The claimant had obtained judgment that the defendants passed off their business by using the name Boca Bistro Café. This judgment determined the consequential costs dispute. The claimant sought indemnity costs from an earlier case-management indication that the defence lacked merit. The defendants relied on an early offer to change the business name and surrender their trade mark, but offered no contribution to costs. The court considered the offer, the parties’ conduct, and the reasonableness and proportionality of the costs claimed.

The court admitted the defendants’ late written costs submissions because doing so served the interests of justice, avoided a further hearing and permitted the claimant to respond. The delay was taken into account as part of the defendants’ conduct.

1. Applicable approach. Under CPR Rule 44.2 and Rule 44.4, the court had a broad discretion concerning whether costs were payable, their amount and timing. It had to consider all the circumstances, including conduct, partial success, admissible settlement offers, proportionality, reasonableness, importance, complexity, skill and time. The approach in Westwood v Knight [2011] EWPCC 11 was adopted as the general IPEC approach.
2. Effect of the offer. The defendants’ December 2012 offer substantially provided the realistic substantive relief ultimately obtained, subject to minor variations. It was therefore a material factor in assessing costs. The claimant was awarded 100% of reasonably assessed costs up to the offer and 50% thereafter. The absence of any offer towards costs prevented the defendants from recovering their own costs and justified awarding the claimant a substantial contribution.
3. IPEC policy and conduct. Settlement offers should be given significant weight because IPEC is intended to promote accessible and proportionate resolution, particularly for SMEs. The court also considered the defendants’ non-compliance, poor communication and conduct at trial. The reasoning was consistent with Wilkinson v London Strategic Health Authority [2012] EWPCC 55, where an early offer had reduced the costs recovered.
4. Assessment and order. Photocopying was disallowed. Other costs were reduced to reasonable and proportionate sums, with an additional £1,000 allowed for the defendants’ conduct. The claimant was awarded £10,750, payable within 28 days, with the defendants jointly and severally liable.