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	England and Wales Patents County Court
You are here: BAILII >> Databases >> England and Wales Patents County Court >> Converse Inc v Conley (UK) Ltd & Ors [2012] EWPCC 25 (16 April 2012) URL: http://www.bailii.org/ew/cases/EWPCC/2012/25.html Cite as: [2012] EWPCC 25

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IN THE PATENTS COUNTY COURT

		Rolls Building 7 Rolls Buildings Fetter Lane London EC4A
		16 April 2012

1. JUDGE BIRSS: I have before me an application for an order for costs at the conclusion of the hearing, pursuant to CPR part 63; rule 63.26(1) and 63.26(2).
2. CPR r63.26(1) provides that the court will reserve the cost of an application to the conclusion of the trial, and r63.26(2) provides that where a party has behaved unreasonably the court will make an order for costs at the conclusion of the hearing.
3. The significance of whether or not the parties behaved unreasonably has two separate aspects. The first is, for the reason I have just explained, the court makes an order for costs at the conclusion of the hearing. The second, provided for by CPR Part 45, rule 45.43, is that the costs awarded to a party under CPR 63.26(2) are in addition to the total costs that may be awarded to that party under rule 45.42. Thus if a party has behaved unreasonably and therefore the costs are awarded, they are in addition to the scale costs.
4. This means that in an appropriate case it may not necessarily be right that a r63.26(2) costs order should be made at the conclusion of the hearing (not least of which because it may not be entirely clear whether someone has behaved unreasonably) but it may be the right thing to do is adjourn the claimant's application for r63.26(2) costs to be dealt with at the trial. It seems to me that this is an appropriate case in which to do that.
5. Although it seems paradoxical, it is an appropriate thing to do because although it means I will not actually be making a costs order at the conclusion of this hearing, if in the end I am satisfied that these costs are costs which arise from the defendants' unreasonable behaviour, they will not be included within the scale costs. There is therefore still a purpose to be served in taking this approach.
6. It will mean that, if they satisfy me of the unreasonableness once I have seen the whole of this case, Converse will be able to recover these costs in addition to the scale costs. And on the other hand, I will be able to make a proper assessment of whether the defendants have behaved unreasonably at the end. That is what I will do.