Kavanagh Balloons Proprietary Ltd. v Cameron Balloons Ltd.

Kavanagh Balloons Proprietary Ltd. v Cameron Balloons Ltd.

The trial judge erred in principle by not awarding costs to the defendant proportionate to the issues won and by misapplying the 'injustice' exception under CPR 36.20. The proper approach was to allocate costs based on the outcome of distinct issues and to apply the mandatory costs consequences of a Part 36 offer unless clear injustice is shown, which was not established here.

Parties
Claimant/respondent: Kavanagh Balloons Proprietary Limited; Defendant/appellant: Cameron Balloons Limited
Jurisdiction
England and Wales
Judgment Date
11 December 2003
Procedural Posture
Civil Appeal / Appeal From Patents County Court on Costs Order
Outcome
Appeal allowed in part
Legal Topics
Patent Infringement, Patent Validity, Costs Orders, Part 36 Offers
Intellectual Property Civil Procedure Patent Infringement Patent Validity Costs Orders Part 36 Offers

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 6 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

Kavanagh Balloons Proprietary Limited

Claimant/respondent

Cameron Balloons Limited

Defendant/appellant

Procedural Posture

Civil Appeal / Appeal From Patents County Court on Costs Order

Legal Issues

  1. 1 Whether the trial judge erred in the exercise of discretion regarding costs for two distinct periods in a patent infringement and validity action, particularly in light of a Part 36 offer.

Ratio Decidendi

The trial judge erred in principle by not awarding costs to the defendant proportionate to the issues won and by misapplying the 'injustice' exception under CPR 36.20. The proper approach was to allocate costs based on the outcome of distinct issues and to apply the mandatory costs consequences of a Part 36 offer unless clear injustice is shown, which was not established here.

Court Disposition

Appeal allowed in part

Orders

  • Claimant to pay 75% of defendant's costs for the first period (up to expiry of Part 36 offer).
  • Claimant to pay all defendant's costs for the second period (after expiry of Part 36 offer), except as covered by paragraph 10 of the original order.