Lufthansa Technik AG v Astronics Advanced Electronic Systems & Ors

A successful party may recover costs incurred on alternative issues which were not decided, where those issues formed part of the unsuccessful party’s overall dispute and the successful party achieved the substantive result. This may include adjourned issues advanced as alternative routes to establishing liability.

Permission to appeal requires each proposed ground to have a real prospect of success. A challenge to findings involving a multi-factorial assessment must identify an arguable error sufficient to justify appellate intervention. Grounds which merely recast factual disagreements, challenge findings unsupported by the trial record, or raise points not taken below may fail this threshold.

The judgment concerned consequential matters following the court’s earlier decision in [2020] EWHC 1968 (Pat). The claimant had established that its patent was valid and infringed by all defendants. The court determined the form of order, the recoverability of costs relating to alternative and adjourned infringement issues, and the defendants’ application for permission to appeal on 15 proposed grounds.

The central questions were whether the claimant should recover costs of issues which had not required determination, and whether any proposed appeal ground had a real prospect of success.

1. Order. The court declined to include permission to apply concerning the adjourned issues after a successful appeal. If an appeal against the order succeeded, the Court of Appeal could make the order required by the consequences of its judgment. The adjourned issues did not require determination at first instance.
2. Costs. The claimant had succeeded overall on infringement. Its failure concerning claim 7 justified an agreed 2% reduction. The claimant was nevertheless entitled to recover the costs of the adjourned issues. They had been advanced as alternative means of establishing infringement, and the claimant had established infringement by each defendant without needing them to be decided. The just result was recovery of all infringement costs, including costs of arguments which succeeded, arguments which did not need determination, and the adjourned issues.
3. Permission to appeal. None of the 15 grounds had a real prospect of success. The construction challenges failed, so consequential grounds did not arise. The insufficiency challenge also failed. Challenges to obviousness findings were inadequate because obviousness involved a multi-factorial assessment and the proposed grounds did not demonstrate an arguable error. Other grounds misunderstood the evidence, challenged findings supported by the record, raised matters not relied upon at trial, or failed in light of the reasoning on disclosure in the prior art.
4. Permission to appeal to the Court of Appeal was refused.

The judgment followed the first-instance judgment in [2020] EWHC 1968 (Pat), in which the claimant succeeded on patent validity and infringement. This judgment dealt with consequential orders, costs and permission to appeal.