Lifestyle Equities CV & Anor v Royal County of Berkshire Polo Club Ltd & Ors

On an interim application, costs ordinarily follow the event where one party successfully defeats a strike-out or summary-judgment application. Costs must be assessed objectively, allowing for reasonable litigation judgments without hindsight. The court must disallow costs that are unreasonably or disproportionately incurred or excessive in amount, having regard to the sums and non-monetary relief in issue, complexity, conduct and all the circumstances.

Late evidence and inadequate cooperation may affect quantum rather than attribution. A payment on account of interim costs should ordinarily be made promptly, and will not be stayed without sufficient evidence justifying departure from that approach. Permission to appeal requires an arguable error in the decision challenged.

The claimants had applied to strike out, alternatively obtain summary judgment on, parts of the fourth and fifth defendants’ Defence and Counterclaim. The application was refused on 17 July 2019, and the defendants received an interim payment of £47,600 on account of costs.

The present judgment dealt with consequential matters without a hearing: final summary assessment of the application costs, the claimants’ request for a stay of payment, permission to appeal, further pleading amendments and costs of post-judgment submissions.

1. Costs attribution. The fourth and fifth defendants were the successful parties because the principal strike-out and summary-judgment challenge had failed. They were therefore entitled to their costs. The necessary amendments concerning foreign infringement and conspiracy did not make the claimants successful on those issues.
2. Assessment. Under the standard basis, costs were disallowed where unreasonably or disproportionately incurred or excessive in amount. The court applied the objective standards of reasonableness and necessity, while recognising the imprecision of summary assessment and resolving reasonable doubt in favour of the paying party. Regard was had to CPR 44.3(5) and CPR 44.4. Reductions were made for excessive research, evidence preparation, costs-schedule preparation, inadequate cooperation and the late service of evidence. Costs were summarily assessed at £56,136.12, leaving £8,536.12 payable after credit for the interim payment.
3. Stay and interim payment. The request to stay payment was refused. The claimants had not provided sufficient information about the defendants’ financial position to displace the general rule that costs of interim proceedings should be dealt with promptly. Complaints about conduct and late evidence went principally to quantum, not attribution or the need for a stay.
4. Permission to appeal. Permission was refused on all proposed grounds. The court considered that the pleading was not strikeable and that summary judgment was inappropriate. Further pleading issues were left until any application to the Court of Appeal had been resolved.
5. Permission to add a new reference to section 3(1)(b) of the Trade Marks Act 1994 and Article 7(1)(b) of the Trade Marks Regulation was refused because the request had not been properly addressed during the hearing and the claimants had not had an opportunity to respond. The fourth and fifth defendants received 60% of their reasonable post-judgment costs, summarily assessed at £8,400.

The judgment records that an earlier judgment dated 17 July 2019 refused the claimants’ strike-out and summary-judgment application. The present court refused a stay of the interim costs payment, refused permission to appeal, and deferred further pleading issues pending any application to the Court of Appeal.