Shenzhen Ske Technology Co Ltd v Bargain Busting Limited

Where an application is withdrawn after the applicant fails to obtain the relief sought, the applicant may properly be treated as the unsuccessful party for costs purposes. The court need not decide the hypothetical merits of an application that has become otiose. It may apply the general rule that costs follow the event where the practical outcome is sufficiently clear.

Costs must nevertheless be reasonably incurred and proportionate. The complexity or value of wider litigation does not, without more, justify enhanced rates or extensive work on a limited interlocutory issue.

The judgment concerned costs following an appeal against a UKIPO trade mark decision. The appeal had been dismissed in an earlier judgment, and the application was ordered to proceed to registration. The appellant subsequently sought a stay or variation of that order pending a proposed second appeal, together with related procedural applications.

The application for permission to appeal was refused, after which the variation application was withdrawn. The court therefore had to determine which party was unsuccessful for costs purposes and to summarily assess the respondent’s costs of the variation, extension, hearing and vacation applications, together with the costs submissions.

1. The variation application was withdrawn after permission to appeal had been refused. The appellant had therefore not achieved what it sought. It was properly regarded as the unsuccessful party, even though the court declined to decide whether the application would have succeeded if determined. The general rule consequently required the appellant to pay the respondent’s costs.

2. The risk that the application would be overtaken by events was materially increased by the appellant’s delay in issuing it and its failure to seek a stay from the Court of Appeal when filing its Appellant’s Notice. Those matters supported the conclusion that it was just to make the usual costs order.

3. The same conclusion applied to the other applications, there being no separate contention for a different order.

4. On summary assessment, the respondent could recover only costs reasonably incurred and proportionate to the issues. The wider value and complexity of the parties’ trade mark litigation did not justify treating the limited stay issue as exceptionally complex or allowing rates above the applicable guideline bands. The total time claimed by the respondent’s solicitors was also higher than reasonable.

5. The respondent’s reasonable and proportionate costs were summarily assessed at £55,000.

• High Court, Chancery Division: The appellant’s appeal from the UKIPO decision was dismissed in [2025] EWHC 1629 (Ch), with an order that the trade mark application proceed to registration.
• Court of Appeal: Permission for a second appeal was refused by Arnold LJ on 13 October 2025.
• High Court, Chancery Division: The appellant withdrew its variation application. The present judgment determined the costs of that and related applications.