Rockwater Ltd v Coflexip SA & Anor

The only issue in contention between the parties now is the question of costs. I think I should address one particular point which was raised on behalf of the defendant and part 20 claimants, Coflexip. For the purpose of this action Rockwater had a model of the Recalde prior art constructed. It was a sizable piece of equipment and took up a large part of the back wall in court. It was a working model in the sense that parts moved and it had electric motors to demonstrate the function of various pieces of equipment such as the reels for the pipes and the tensioners at the stern of the vessel. In addition to that, Rockwater had certain animations produced to illustrate various steps in the pipelaying exercise.

Mr. Miller QC, for Coflexip, says that the costs of those items, and in particular the costs of the model, are disproportionate and should be disallowed. He says it is not right that his client should bear the costs, which may be very substantial, in particular of the making of the model. His estimate to me was that the model maker would have charged somewhere in the region of £50,000 and that, in addition, there would have the costs of supervision by members of Rockwater’s legal team.

Mr. Thorley QC, for Rockwater, does not dispute the level of costs suggested by Mr Miller but he argues that the model and the animations were of assistance to me and will be of particular assistance to the Court of Appeal where this matter is bound to end up and where the court may not have the familiarity with the technology that I, who have sat through the first action relating to this patent, do.

I think Mr. Miller is right that the question of whether or not the model is of use to the Court of Appeal is a matter which should be considered by the Court of Appeal if and when this case gets there. I should look at it on the basis of whether it was of use to me here and whether in all the circumstances it was proportionate.

Proportionality works both ways. In small cases the parties have to be careful to make sure they do not spend any more on the case than it merits. Although that care has to be shown in all litigation, at the other end of the scale, where a very great deal of money is at stake, it is not just to be expected but it is reasonable in my view for parties to try their hardest to win their case.

In this case, as a result of the judgment in the first action concerning this patent, which I refer to as the Stolt action, it appears that the Rockwater vessel, although not in fact in issue in that action, was arrested in Brazil and only released after a great deal of effort. In other words, the threat to Rockwater, even on the basis of an action to which they were not party, was substantial. There is little doubt that this action would have been of even greater threat to the operation of their pipelaying vessel.

Second, it is clear from the relief sought by Coflexip in their part 20 counterclaim that a serious and substantial claim was being made against Rockwater. Coflexip sought not only an inquiry as to damages or an account of profits, the latter of which would have sounded no doubt in millions of pounds, but they also sought an order for delivery up or destruction upon oath of

“all products within the possession, power, custody or control of Rockwater in relation to which the patent is infringed and any article in which those products are inextricably comprised”.

That means what they were seeking was delivery up not just of the pipelaying equipment, which is an enormous part of the Rockwater vessel, but indeed the vessel itself, that being the article in which the pipelaying equipment is “inextricably compromised”. In summary, this was a claim which was worth very large sums indeed and represented a significant challenge to the continued operation and ownership of a sizable and expensive pipelaying vessel. In my view it was inevitable that Rockwater would fight it with the utmost vigour and thoroughness.

Furthermore this was a case where the construction of a model and the production of animations was reasonable on another basis. The only piece of prior art relied on at the trial consisted of the Recalde pipelaying equipment which is described in the two Recalde patents.

As I have explained in my judgment, the primary document relied upon was the Recalde United States specification, a document of intense density which is difficult to comprehend without very slow and painful analysis. The model, particularly in this case, proved to be a convenient and useful visual aid.

In my view, taking into account matters of proportionality here points strongly towards it being reasonable for Rockwater to have produced the model and the animations. I suspect that the Court of Appeal will find the model and the animations at least as useful, but my decision is based upon the use to which I think it was put in this trial and the degree to which Rockwater’s decision to have the model built and the animations made can be regarded as reasonable in all the circumstances. It follows that I will not accede to Mr. Miller’s suggestion that the costs of those items be disallowed.

As to the other items in dispute there are arguments as to a piece of prior art which was dropped before the case came to trial. There were arguments as to the necessity or relevance of some of the evidence put in. I can deal with this quite shortly. Dealing with questions of costs at the end of a very substantial trial, as this was, is not a matter of science. It is very rare indeed for a winning party to win on every single issue or to have restricted itself to what at the end of the day proved to be only those matters which the court finds useful. I do not see any reason for disallowing any of Rockwater’s costs, so I will direct that the costs of the action be Rockwater’s, those costs to be assessed.