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

An anti-suit injunction requires a sufficient threat of foreign proceedings amounting to abuse, assessed in the particular circumstances. The court should not grant a broad quia timet injunction merely because a claimant has previously been litigious. The court must also exercise caution having regard to comity and the circumstances of any proposed foreign proceedings.

In intellectual property costs disputes, the court should first identify the overall winner, then consider whether a suitably circumscribed issue justifies depriving that party of its costs, and finally whether justice requires an order for the losing party’s costs of that issue. The fact that the successful party lost on an issue is insufficient by itself.

The claimants’ infringement claims concerning the defendants’ branding had been dismissed in the Main Judgment. At the consequentials and form of order hearing, the defendants sought declarations, a broad anti-suit injunction restraining further proceedings in specified foreign jurisdictions, and costs relief. The claimants opposed the injunction, disputed the proposed costs recovery, and sought permission to appeal.

The court had to decide whether the evidence established a sufficient threat of abusive foreign proceedings, whether the defendants’ costs should be reduced for discrete issues on which they had not succeeded, the appropriate interim payment on account of costs, and whether permission to appeal should be granted.

1. Anti-suit injunction. The court had jurisdiction to grant the relief sought, but declined it. An injunction restraining future foreign proceedings required a sufficient threat that proceedings would be brought and would constitute an abuse. The broad order sought was premature because future proceedings might arise in materially different circumstances. The claimants’ litigious conduct and earlier threats did not establish a sufficient present threat. If abusive proceedings were later commenced, the defendants could seek relief promptly.
2. Costs. Under CPR r 44.2, the unsuccessful party ordinarily pays the successful party’s costs, subject to all the circumstances. In an intellectual property case the court should ask: who is the overall winner; whether the winner lost on a suitably circumscribed issue; and whether it is appropriate and just to order the winner to pay the losing party’s costs of that issue. The mere fact of losing on an issue is insufficient. A discrete issue may justify a no-order outcome, or an order against the overall winner where additional costs were unreasonably incurred and justice requires it.
3. Only the joint-liability, threats and abuse, and witness-evidence issues were potentially suitably circumscribed. The average-consumer complaint was trivial. No deduction was justified. The claimants’ misleading evidence, presentation of documents, and unnecessary foreign-law pleading were conduct matters relevant to costs. The claimants were ordered to pay the defendants’ costs.
4. Interim payment and hearing costs. The court applied the budgetary framework in CPR r 3.18, allowing for uncertainty in detailed assessment, and ordered an interim payment of £750,000. The defendants’ separate costs of the form of order hearing were not summarily assessed, although the costs judge could consider on detailed assessment whether there was good reason to depart from the budget.
5. Permission to appeal. Permission was granted in relation to the crowded-marketplace issue. Post-sale confusion did not justify separate permission, although it might be subsumed within that ground. Permission was refused on the argument concerning the admissibility of trade evidence under CPR PD 57AC, subject to the Court of Appeal’s power to grant permission.

The judgment records that the claimants intended to pursue an appeal from the Main Judgment. Permission to appeal was granted on the crowded-marketplace issue, while the post-sale-confusion point was not granted independent permission and the CPR PD 57AC ground was refused.