Saint-Gobain Adfors SAS v 3M Innovative Properties Company

On summary assessment, recoverable costs must be reasonably incurred, reasonable in amount and proportionate to the matters in issue. Doubt about reasonableness or proportionality is resolved in favour of the paying party. Guideline hourly rates are a starting point rather than fixed scales. In substantial and complex litigation, a modest uplift may be justified, but the receiving party must justify any greater departure. Proportionality is assessed by reference to the sums and non-monetary relief in issue, the complexity of the litigation and the other relevant circumstances. The assessment remains evaluative where the value of non-monetary relief is uncertain.

The judgment concerned the summary assessment of Saint-Gobain’s costs of applications arising from patent proceedings between the parties. In an earlier judgment, cited as [2023] EWHC 2769 (Pat), the court had determined the applications. It was agreed that 3M would pay Saint-Gobain’s costs on the standard basis and that the costs would be summarily assessed on the papers.

Saint-Gobain claimed more than £104,000. 3M submitted that no more than approximately £68,500 should be recovered. The issues included the appropriate solicitors’ hourly rates, whether particular items were reasonably incurred and proportionate, the level of counsel’s fees, travel and accommodation expenses, and the overall proportionality of the resulting figure.

1. Applicable principles. Under Civil Procedure Rules 1998, r 44.3(1) and (2), costs which were unreasonably incurred or unreasonable in amount were not allowed, and only proportionate costs were recoverable. Doubts were resolved in favour of the paying party. Rule 44.3(5) identified proportionality factors including the sums in issue, the value of non-monetary relief and the complexity of the litigation. Rule 44.4(3) required consideration of matters including conduct, value, importance, complexity, specialist knowledge and the place where work was done.
2. Hourly rates. The Guide to the Summary Assessment of Costs provided guideline figures as a useful starting point, not scale rates. The litigation involved legal complexity and some technical complexity, although the applications themselves were not technically or legally complex. Because the solicitors and counsel had acted at trial, a modest uplift was justified. The claimed uplift was not justified. Maximum hourly rates were therefore allowed at £600 for Grade A, £400 for Grade B and £200 for Grade D.
3. Specific items. Deductions were made for repetitive material in a witness statement, attendance at an EPO opposition attributable to that opposition rather than the applications, excessive time spent on the draft order and hearing preparation, counsel’s fees, and client travel and accommodation. The court accepted that leading and junior counsel could reasonably be instructed, but assessed counsel’s fees at £28,000.
4. Overall proportionality and order. The resulting figure was £75,000. Although the value of Saint-Gobain’s ability to use the CT Scan Files was difficult to quantify, the court could not conclude that £75,000 was disproportionate. Saint-Gobain’s costs were accordingly assessed at £75,000.

High Court (Patents Court): The costs applications were determined in the earlier judgment at [2023] EWHC 2769 (Pat). In this judgment, the court summarily assessed Saint-Gobain’s recoverable costs at £75,000.