Bargain Busting Limited v Shenzhen SKE Technology Company Limited & Ors

Indemnity costs may be ordered where the paying party’s behaviour or the circumstances take the litigation out of the norm. Serious allegations, misuse of criminal contempt proceedings to advance private interests, and threats linked to reporting solicitors to a regulator may cumulatively justify that order. The court may make supplementary findings on consequential matters after the main judgment, provided the parties have an opportunity to address them.

Where costs are subject to detailed assessment, a payment on account should ordinarily be ordered. The sum must be a cautious estimate allowing for uncertainty. Permission for a first appeal requires a real, rather than unreal, prospect of success or another compelling reason, but satisfying that threshold does not compel permission.

The applicant brought contempt proceedings against the respondents concerning communications with the Intellectual Property Office about delaying registration of a trade mark. In an earlier judgment, the court dismissed the substantive applications and invited submissions on consequential matters.

The applicant accepted liability for the respondents’ costs on the standard basis, but opposed indemnity costs, detailed assessment and payment on account. It also sought permission to appeal. The respondents sought indemnity costs. The issues were whether the conduct justified indemnity costs, whether the costs should be assessed summarily or in detail, whether a payment on account should be made, and whether permission to appeal should be granted.

1. Costs basis. Under CPR rule 44.2(4) and (5), the court considered all the circumstances, particularly the parties’ conduct. An unsuccessful result alone did not justify indemnity costs. The proceedings were unusual and serious because they made allegations comparable in seriousness to dishonesty allegations against officers of the court. The applicant’s solicitors had used criminal contempt proceedings as pressure to advance private interests and had threatened, objectively, to report solicitors to the SRA unless the respondents accepted settlement terms. Taken together, those matters were overwhelmingly outside the norm. Costs were therefore ordered on the indemnity basis.
2. Supplementary findings. The court could make further findings for consequential matters after the main judgment, following submissions from the parties. The earlier adverse comments on weaponisation of the contempt jurisdiction, together with the correspondence and attendance notes, provided a sufficient evidential basis.
3. Assessment and payment on account. The costs were to be subject to detailed assessment. The proceedings were complex, multi-party and hard-fought over about eight months, so the duration of the final hearing did not justify summary assessment. CPR rule 44.8 required a reasonable sum on account unless there was good reason otherwise. Uncertainty required caution, not refusal. Allowing a margin of about one third, the court ordered payment of £215,000 on account, apportioned pro rata between the three firms.
4. Permission to appeal. CPR rules 52.3(1)(a) and 52.6 required a real prospect of success or some other compelling reason. A real prospect meant one that was not unreal, not necessarily a probability. The threshold was only a gateway and permission remained discretionary. None of the five proposed grounds had a real prospect of success. The challenges principally attacked evaluative and factual findings, for which appellate intervention was restricted. Permission to appeal was refused and the application dismissed.

The judgment concerned consequential matters following the court’s earlier judgment in the same contempt proceedings, identified as [2026] EWHC 933 (Ch). The substantive applications had been dismissed. The present court ordered indemnity costs, detailed assessment, a payment on account and refused permission to appeal.