Shenzhen Ske Technology Co Ltd v Bargain Busting Limited

Indemnity costs require conduct or circumstances taking the case out of the norm. An unsuccessful appeal is not “hopeless” merely because it fails or is dismissed quickly; the question is whether a reasonable party should have regarded it as so speculative or weak that it ought not to have been pursued. Duplication, advance notice of an indemnity-costs application and defects in an authorities bundle do not, without more, justify indemnity costs.

On the standard basis, costs must be reasonably incurred, reasonable in amount and proportionate to the matters in issue. The court must scrutinise the costs claimed, including hourly rates, time spent and counsel’s fees. The availability of an alternative forum with more restricted costs recovery does not displace the application of CPR 44.

The judgment determined costs consequential on the court’s substantive judgment of 1 July 2025 in an appeal from the UKIPO Trade Marks Registry. Shenzhen Ske Technology Co Ltd accepted that it should pay Bargain Busting Limited’s costs, but disputed the basis and amount of assessment.

Bargain Busting sought indemnity costs, alleging that the appeal was hopeless, unnecessary and duplicative, and referring to notice of the application and problems with the authorities bundle. It claimed £123,916. The central issues were whether the conduct took the case out of the norm and, if costs were assessed on the standard basis, what sum was reasonable and proportionate.

1. Basis of assessment. The court assessed costs on the standard basis. Indemnity costs were exceptional and required conduct or circumstances taking the case out of the norm, applying Excelsior [2002] EWCA Civ 66.
2. Hopelessness. Although the appeal was ultimately dismissed relatively quickly, it was challenging. The court was not satisfied that a reasonable party should have concluded that it was so speculative or weak that it should not be pursued. The approach in Lejonvarn v Burgess [2020] EWCA Civ 114 did not justify indemnity costs on these facts.
3. Other alleged misconduct. The potential duplication of arguments in later High Court proceedings did not take the case out of the norm. Any resulting costs issue could be addressed in those proceedings. Advance notice of an indemnity-costs application and complaints about the authorities bundle were also insufficient.
4. Amount. Standard-basis costs remained subject to reasonableness and proportionality under CPR 44. The availability of an alternative appeal route with scaled costs did not alter that analysis. The claimed solicitor rates lacked clear and compelling justification above the applicable London band 2 rates, and the hours and counsel’s fees were excessive. The court applied the guidance in Athena Capital [2022] EWCA Civ 1061 and Samsung v LG [2022] EWCA Civ 466.
5. Order. Bargain Busting’s costs were summarily assessed at £75,000.

• High Court, Chancery Division: Appeal from the UKIPO Trade Marks Registry; the substantive appeal was dismissed by judgment dated 1 July 2025. This judgment determined the consequential costs.