Kavanagh Balloons Proprietary Ltd. v Cameron Balloons Ltd. [2003] EWCA Civ 1952 (11 December 2003)

Kavanagh Balloons Proprietary Ltd. v Cameron Balloons Ltd. [2003] EWCA Civ 1952 (11 December 2003)

The trial judge erred in principle by not allocating costs according to the distinct issues and the outcome on those issues for the first period, and by finding it unjust to apply the usual Part 36 costs consequences for the second period without sufficient justification. The proper approach is to allocate costs by issue and to apply Part 36 strictly unless clear injustice is shown.

Citation
[2003] EWCA Civ 1952
Parties
Claimant/respondent: Kavanagh Balloons Proprietary Limited; Defendant/appellant: Cameron Balloons Limited
Jurisdiction
England and Wales
Judgment Date
11 December 2003
Procedural Posture
Appeal From Patents County Court (costs Order) / Court of Appeal Judgment
Outcome
Appeal allowed in part
Legal Topics
Patent Infringement, Patent Validity, Costs Orders, Part 36 Offers, Prior Use, Obviousness
Intellectual Property Civil Procedure Patent Infringement Patent Validity Costs Orders Part 36 Offers Prior Use Obviousness

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Parties

Kavanagh Balloons Proprietary Limited

Claimant/respondent

Cameron Balloons Limited

Defendant/appellant

Procedural Posture

Appeal From Patents County Court (costs Order) / Court of Appeal Judgment

Legal Issues

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

Ratio Decidendi

The trial judge erred in principle by not allocating costs according to the distinct issues and the outcome on those issues for the first period, and by finding it unjust to apply the usual Part 36 costs consequences for the second period without sufficient justification. The proper approach is to allocate costs by issue and to apply Part 36 strictly unless clear injustice is shown.

Court Disposition

Appeal allowed in part

Orders

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