Nokia Technologies OY & Anor v Ascension International Trading Co, Limited (t/a Realme) & Ors

In deciding costs, the court must identify issues at an appropriate level of generality. A successful party is not deprived of costs merely because it failed on subsidiary points within an issue on which it succeeded overall. The assessment is a value judgment, and an atomic dissection of the litigation is inappropriate where the broader issue was won.

For a leapfrog certificate under section 12 of the Administration of Justice Act 1969, the judge considers the decision as a whole and asks whether it involves a point of law of general public importance satisfying the statutory conditions. The judge need not certify each ground separately.

The judgment concerned costs and an application for a certificate enabling a possible leapfrog appeal. The underlying patent litigation involved Nokia and Oppo, including Trial E and post-trial proceedings in the ’023 action. Nokia had succeeded overall and obtained an injunction, while Oppo achieved limited success on a stay pending appeal.

The court considered whether Nokia’s costs should be reduced for unsuccessful points concerning French and Chinese law, who should bear post-trial costs, and the costs of the hearing. It then considered whether to grant a certificate under section 12 of the Administration of Justice Act 1969, including whether certification should be addressed separately for each proposed ground.

1. Trial E costs. The court rejected an attempt to treat French and Chinese law as a single unsuccessful issue. The relevant assessment was whether Nokia had been unsuccessful on properly framed issues, such as whether Oppo was already licensed under French law and whether Nokia could choose between rates set in Chongqing and the United Kingdom. Nokia had succeeded on those broader issues. No reduction was therefore made in Nokia’s costs. The inquiry under CPR Part 44 involves a value judgment, and issues should not be divided at an atomic level.
2. Post-trial costs. Nokia’s later agreement that a court-set licence would include a standstill was pragmatic and did not amount to an acceptance that its earlier position was wrong. Nokia had succeeded in obtaining an injunction over EP 560 and was entitled to all post-trial costs.
3. Hearing costs. Oppo’s success on a stay and its evidence concerning irreparable harm did not displace the general rule that costs follow the successful party. The hearing costs remained costs in the case.
4. Leapfrog certificate. Applications under the 1969 Act are rare and should be approached cautiously. The Supreme Court’s existing permission in Optis F established the significance of the relevant point of law. The court also considered that section 12(3A)(b) would be satisfied.
5. The statutory inquiry concerns the decision as a whole, not separate certification of every proposed ground. A certificate was granted in general terms under section 12(3). It did not itself grant Supreme Court permission. A protective provision could preserve a Court of Appeal route if the Supreme Court refused permission on a ground, but not where the only remaining ground was the competition-law point. Jones v Ceredigion County Council [2007] UKHL 24 was relied on in this respect.

First-instance High Court decision on costs and a leapfrog certificate application. The judgment records that the Supreme Court had granted permission in Optis F, but no appellate history for this costs decision is stated.