The Football Association Premier League Ltd v Berry & Anor

When fixing an interim payment on account of costs, the court should make a reasonable estimate of the sum likely to be recovered. It need not identify the irreducible minimum. The court may consider the value and complexity of the claim, the issues actually defended, the evidence reasonably required, and whether an alternative forum or procedure should have been used. High costs are not necessarily disproportionate where the defendant contests liability broadly and the claim involves substantial legal and evidential issues. Any provisional assessment may be revisited by the costs judge after the final outcome is known.

The claimant obtained summary judgment by consent on copyright infringement issues against the first defendant. The parties agreed the substantive declaration, injunction, inquiry as to damages or account of profits, and standard-basis costs order. The remaining dispute concerned the amount of the interim payment on account of costs.

The first defendant argued that the claim was of low value, that it should have been brought in the Intellectual Property Enterprise Court, and that the claimant’s costs were disproportionate. The claimant relied on the value of the rights, the complexity of the copyright, European and competition law issues, the breadth of the defence, and the evidence required to establish subsistence, ownership and infringement.

1. Orders by consent. The court approved the agreed declaration, granted an injunction, ordered an inquiry as to damages or an account of profits including additional damages, gave permission to apply for directions, and ordered costs on the standard basis if not agreed.
2. Assessment of likely recovery. The court accepted the principle stated in United Airlines Inc. v United Airways Limited [2011] EWHC 2411 (Chancery): the relevant task is to make a reasonable estimate of what is likely to be awarded, rather than to identify the irreducible minimum.
3. The value of the copyright works could not be reduced simply because they formed part of football broadcasts. A willing licensor and willing licensee analysis was an appropriate starting point. The available subscription price provided a plausible comparator, and the court considered it likely that the claim would exceed £25,000 before additional damages were considered.
4. The proportionality challenge substantially failed. The defendant had defended the claim across the board, including subsistence, ownership and use of copyright, as well as European and competition law issues. The claimant therefore had to incur substantial evidential and specialist legal costs. The fact that the claim might have been brought in the Intellectual Property Enterprise Court was given limited weight because the point had not been raised until late in the proceedings.
5. The court recognised that the costs judge could revisit the matters after the final outcome was known. On the material available, an interim payment of £65,000 was appropriate and was ordered to be paid within 28 days.