Magmatic Ltd v PMS International Group Plc
2014
COURT OF APPEAL (CRIMINAL DIVISION)
United Kingdom
CORAM
- LORD JUSTICE MOSES
- LADY JUSTICE BLACK
- LORD JUSTICE KITCHIN
Areas of Law
- Intellectual Property Law
- Civil Procedure
2014
COURT OF APPEAL (CRIMINAL DIVISION)
United Kingdom
CORAM
AI Generated Summary
This consequential ruling by the Court of Appeal, delivered by Lord Justice Kitchin, resolves four outstanding matters following its 28 February 2014 judgment in litigation between Magmatic Limited and PMS International Group PLC concerning a Community Registered Design, passing off, unregistered design rights, and copyright. The parties disputed how trial costs should be apportioned. PMS argued it was the overall winner after the appeal92having prevailed on the CRD and other claims92and sought a large recovery of its trial costs; Magmatic pressed for a much smaller adjustment to Arnold J92s earlier costs order. Considering the discrete nature of the issues, PMS92s higher costs, the pre-trial offer, and the reversal on the CRD, the Court awarded PMS 45% of its trial costs. It ordered a payment on account of 50% of that trial-cost proportion and 60% of appeal costs, refused Magmatic permission to appeal to the Supreme Court because no point of general public importance was raised, and denied a stay of the enquiries pending appeal.
Judgment
Lord Justice Kitchin:
Introduction
We gave judgment in this appeal on 28 February 2014. Thereafter, the parties sought time in which to attempt to agree a form of order and to file submissions about any aspects of it upon which they differed. Four issues remain in dispute. This is the ruling of the Court upon those issues.
Costs
Magmatic accepts that PMS is entitled to its costs of the appeal. The parties are, however, unable to agree as to the appropriate order in relation to the costs of the trial. PMS contends that Magmatic should pay 80% of its costs. Magmatic responds that rather than paying any of PMS’s costs, PMS should be paying 40% of its costs. Before addressing these rival submissions, we must first say a little about the order made by Arnold J and how he arrived at it.
Arnold J dealt with costs at a separate hearing on 22 July 2013. In his judgment ( [2013] EWHC 4498 (Pat) ) he concluded that PMS should pay 70% of Magmatic’s costs of the trial, essentially for the following reasons. Magmatic was, he thought, the overall winner. However, it had lost on a number of significant issues, notably a claim in passing off which was abandoned at an early stage; a claim for infringement of copyright in art work, accounting for about 3% of its costs; the Article 7 point (that is to say, disclosure of the Rodeo), accounting for about 10% of its costs; and two of the six unregistered design right claims, accounting for about 5-10% of its costs. Overall, therefore, Magmatic lost on issues in relation to which it had incurred about 20% of its costs. Further, the judge considered that these were issues which were sufficiently discrete to warrant a notional recovery by PMS. On the assumption the parties had incurred costs at the same level, this would therefore point to a reduction in Magmatic’s costs of about 40%.
There were, however, two further complicating factors. First, PMS’s costs were about 50% higher than those of Magmatic. Second, a week before trial, Magmatic made an offer to settle which, broadly speaking, it bettered in the final result. Overall, the judge considered an order requiring PMS to pay to Magmatic 70% of its costs would be fair.
PMS submits that now, following the appeal, it is plainly the overall winner. It has prevailed in relation to the claim for infringement of the CRD, the passing off claim, the claim for infringement of two of the unregistered design rights and the claim for infringement of copyright in the art w