Nestec S.A. & Ors v Dualit Ltd & Ors

Having made an order for costs in this case, it now falls for me to summarily assess them. I deal first of all with the claimants' schedule of costs. The total on this application comes to £9,553.46.

The points Mr. Pritchard, who appears for Nestec, takes against them are as follows. First he says that although I have made an order that the applicant should pay the claimants' costs of this application, I should bear in mind the fact that the applicant did succeed in three documents that were in issue in this case, documents 1, 9 and 10, and that although the hearing itself did not take up much time relating to documents 1, 9 and 10 the preparation time may well have done and I should take that into account and effectively split the preparation time 50/50 between the documents which the applicant failed in relation to and the three documents that the applicant succeeded in relation to.

I do not accept that is a fair analysis. Mr. Brandreth explains to me that document 1 was provided by return of post and the claimants made no objection to documents 9 and 10. On that basis it seems to me that even if it was otherwise legitimate to take that matter into account, which it probably would have been, on the facts of this case I can see no good reason for making a deduction for those and I will not do so.

The second point arises in relation to the rates that the solicitors for the claimants charged on this matter. Mr. Pritchard points out correctly that the rates for Bird & Bird for the relevant people dealing with this matter are higher than the normal guideline rates in the Solicitors’ Guideline Hourly Rates for a Central London firm in the location of Bird & Bird. He submits that given this is a procedural application rather than a patent trial, I should apply those guideline rates rather than the rates that Bird & Bird have charged which would reduce the sums claimed to a substantial degree in some cases, although not in other cases.

Again, I am afraid I do not accept Mr. Pritchard's submission. The application related to documents which played a part at trial and it was, in my judgment, proportionate and entirely reasonable for the claimants to employ the same firm at the same rates as it dealt with at trial. If I were to impose a different charging rate on the basis that this was a procedural application, that would create an incentive on a party in a patent case to try and instruct new solicitors who were not experts in the case at a lower rate which would no doubt increase the costs very substantially. It was plainly right for the solicitors who had handled this case to deal with it. They are specialist solicitors because this is a specialist case. Indeed, although it was procedural, in order to understand the nature of the application and the documents sought, it would also be necessary for the solicitors to be the ones who attended trial.

Accordingly, for all those reasons I do not accept Mr. Pritchard's submission that I should reduce the rates for that reason. The rates charged by Bird & Bird in this case seem to me to be reasonable and proper rates for specialist solicitors in a patent case and I do not believe I should reduce them on this summary assessment.

The next point Mr. Pritchard makes relates to timing and duplication. He submits that there was duplication at the hearing where there were two solicitors in court where there need only be one. I do not accept that on the facts of this case. This is an important application and I can quite understand why the claimants had two solicitors sitting in court. Although it is not determinative, I note that Mr. Pritchard also had two solicitors behind him in this application.

The more substantial point is the amount of time which the claimants' solicitors took in preparing this matter. I do note that it took some 15 hours other than the partner time, two hours, dealing with preparing this application. I must say, that does seem to me to be a relatively high amount of time. I bear in mind the importance of the application to the claimant and, no doubt, they wanted to do the work thoroughly, but I do believe there is some more time than was really reasonable or necessary to deal with this application. I will reduce the amount of costs accordingly when I come to a final figure.

Those are all the points Mr. Pritchard takes. The question is, how much should I reduce the costs by, bearing that point in mind? 15 hours seems too long to me. I am quite sure this matter could have been done in about 10 hours -- that is, 10 hours of the time of the relevant senior associate, junior associate and paralegal. I will deduct the costs of the junior associate in this case. That seems to me the fairest way of dealing with it. I will take a round number and bring it down from £9,500 odd to £8,000. That is my summary assessment of the claimants' bill -- £8,000.

I now turn to deal with the defendants' costs. No point is taken on the charging rate and, indeed, rightly so. Mr. Pritchard submits the hours are too high. I do not accept that. 5.7 hours by Mr. Moore, who was the right person to deal with this application, seems to me to be entirely reasonable and I will summarily assess the costs of that application in the sum claimed which is £6,230. That is that.