Unwired Planet International Ltd & Anor v Huawei Technologies Co Ltd & Ors

Where substantive litigation is compromised but costs remain unresolved, the court must do justice without incurring unnecessary further costs. It may determine which party would probably have succeeded, particularly where the issues are suitable for assessment and substantial costs are at stake. In an interim application without cross-examination, that assessment is generally more manageable than after an unresolved trial. An anti-suit injunction may be appropriate where foreign proceedings interfere with judgments or processes of the English court. The decision whether to lift a stay pending appeal requires a balance of justice, including the parties’ compensable and irreparable harm, the existence of undertakings, and the practical effect on each business.

Unwired Planet applied for an anti-suit injunction restraining Chinese proceedings commenced by Huawei and for the lifting of a stay on an injunction restraining patent infringement. The substantive application was compromised on the morning of the hearing, leaving costs for determination.

The Chinese proceedings challenged matters decided in the English SEP and FRAND litigation, while Unwired Planet had separately commenced Mexican infringement proceedings and sought interim relief despite receiving global licence royalties. The court therefore assessed the likely outcome of each unresolved application, the parties’ conduct, and the appropriate allocation of costs.

1. Costs after compromise. Applying Brawley v Marczynski (No 1) [2003] 1 WLR 813, the court held that there was no convention requiring no order as to costs. Where it was obvious who would have won, an order could be made in that party’s favour. The principles in BCT Software Solutions Ltd v C Brewer & Sons Limited [2004] C.P. Rep. 2 were also relevant. The present interim applications were easier to assess than a compromised trial because there had been no cross-examination.
2. Anti-suit injunction. The Chinese proceedings sought to relitigate or interfere with issues already determined in the English litigation, including FRAND licensing terms, the global licence, the injunction and related competition-law allegations. Their commencement evidenced a course of conduct commonly described as hold-out and an intention at least to interfere with the English proceedings. Had the matter been contested, the anti-suit injunction would have been granted.
3. Lifting the stay. The application to lift the stay was cumulative rather than dependent on the anti-suit application. The stay preserved a balance of justice pending appeal. Unwired Planet was receiving global royalties, so continued UK sales caused no uncompensated harm pending appeal. By contrast, lifting the stay risked unquantifiable and irreparable harm to Huawei’s UK consumer-device and infrastructure businesses. The absence of any cross-undertaking in damages materially strengthened that conclusion. The application would have failed.
4. Costs order. Unwired Planet was the substantive winner on the anti-suit application and was entitled in principle to its costs. Both parties’ conduct was criticised: Huawei for commencing the Chinese proceedings and Unwired Planet for seeking Mexican interim relief while accepting global royalties. Unwired Planet recovered 70% of its costs, reflecting the estimated division between the applications. It recovered no costs of the stay application, but was not ordered to pay Huawei’s costs of it. An interim payment was ordered at 60% of 70% of £360,000.

The judgment describes earlier English proceedings before Birss J, including judgments on infringement, FRAND terms and remedies, with appeals pending. No appellate history of this judgment is stated.