With Wise Limited v Wise Payments Limited

Where an application is abandoned before its costs can properly be assessed, the court may reserve the costs decision until trial. This is particularly appropriate where the abandoned application concerns an abuse of process argument that the respondent may still plead substantively. Determining costs immediately could require findings on the merits and pre-empt the parties’ arguments at trial. The court may preserve the parties’ existing submissions and hearing record, and give permission for an application for off-scale costs to be renewed after trial.

The judgment concerned the costs of Wise Payments’ abandoned application to strike out With Wise’s claim as an abuse of process. The claim followed an earlier application to amend existing trade mark proceedings to introduce a non-use challenge, which had been refused by HHJ Hacon in [2024] EWHC 3448 (IPEC).

After the court circulated a draft judgment in the earlier proceedings, Wise Payments withdrew its strike-out application. With Wise sought off-scale costs, alleging that the application had been hopeless and brought as a delaying tactic. Wise Payments disputed that contention and indicated that the abuse of process issue might be raised in its Defence. The issue was whether costs should be determined immediately or reserved until trial.

1. The costs of the abandoned strike-out application were reserved until after trial. The court retained sympathy for With Wise’s position but considered that an immediate costs decision would inevitably involve commenting on the substantive merits of the abuse of process application.

2. That immediate assessment could pre-empt the parties’ arguments at trial if Wise Payments in fact raised abuse of process in its Defence. The fact that the strike-out application had been withdrawn did not justify deciding costs in isolation from the substantive issue.

3. With Wise was given permission to renew its claim for off-scale costs after trial. The parties’ skeleton arguments and the transcript of the costs hearing were to be preserved as the evidential record of the arguments already advanced.

4. The parties were directed to draft an order dealing with the reserved costs issue and directions concerning the application for an expedited trial.

First-instance decision. The judgment records earlier procedural steps in the same litigation, including HHJ Hacon’s refusal of permission to amend in [2024] EWHC 3448 (IPEC).