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Shorter Trial Scheme: proposed recoverable costs cap of £500,000 in patents litigation

Posted on 19 May 2023

Patent litigation can be expensive, and the potential overall liability for costs can be uncertain and open-ended. In recent years, various streamlined procedures have been implemented to make litigation cheaper, more efficient, and less complex so that it will provide a more accessible route for litigants. These streamlined procedures limit the scope of some of the more expensive and time-consuming procedural steps of a case, notably disclosure, witnesses and experiments.

Alongside the option of bringing proceedings in the Intellectual Property Enterprise Court (IPEC), where adverse costs are capped at £60,000, the Shorter Trial Scheme (STS) has now been running in the Business & Property Courts in the High Court for several years. The STS has been a successful forum: it offers parties the opportunity to resolve disputes in a substantially shorter period of time, and with potentially less cost, with streamlined case management directions leading to judgment within a year of the case starting. The defining feature of an STS case is increased court control of the management of the dispute, comprising in particular a compressed procedural timetable. This will include a maximum four days for the trial (including reading time for the judge), and summarily assessed costs (with no provision for costs budgeting). However, unlike the IPEC, there is currently no cap on recoverable costs in the STS.

Whilst the STS is particularly well suited to straightforward cases, it also works well for complex patent disputes where there is limited need for experiments or extensive fact evidence. Further, as parallel proceedings in patent disputes are common, an early judgment from the English courts via the STS may provide a real tactical advantage in cross-border disputes.

In the light of the above then, the recent proposal from the Civil Justice Council (CJC), as part of its Costs Review: Final Report, for there to be a pilot of a costs cap of £500,000 for recoverable costs in patent cases in the STS, is a particularly interesting proposal. Such a move is seen as bringing improved access to justice for mid-tier patent disputes, particularly in the light of the imminent commencement of the Unified Patent Court (UPC) from 1 June 2023. For likely a significant number of patent cases this could provide the opportunity of access to the court outside of a full blown Patents Court trial or IPEC proceedings.

The CJC supports the proposal, and notes in its Report that, if the cap works in this specialist area, it could have "significant positive implications overall". One key question however is why the proposed pilot should apply only to patent disputes, and not be broadened out to other areas of IP. The CJC's response on this is that, as things currently stand, the evidence base for a proposal going beyond patents is "not strong". No doubt, however, this will be kept under review during the period of the pilot, including an analysis of the impact of the pilot on litigants' use of the general Patents Court and the IPEC.

No date has yet been set for the introduction of the pilot, but given the impetus, and the context of the UPC, it is to be hoped that it will be in place imminently.

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