|Sony Communications International and SSH Communications Security Corporation  EWHC 2985 (Pat)
Mr Roger Wyland QC sitting as a Deputy High Court Judge 24/11/2016
In this matter the court, when dealing with a summary assessment of costs, considered whether to depart from the court approved budget of a successful claimant where the claimant had failed to seek a variation of the budget on becoming aware of their overspend and where the claimant sought to combine two phases of trial preparation and Trial to take advantage of a significant underspend on the Trial phase. The Claimant also sought to change agreed apportionments within some phases where the court had approved the total for the phases and the Defendant had agreed the apportionment.
Judgment had been given on the determination of the order for costs following Trial of an action for revocation of the Patent with Part 20 claim for infringement of the Patent.
Costs budgets prepared, exchanged and agreed in writing and approved by the Court by a Costs Management Order 21 December 2015.
Judgment was given with the Patent held to be invalid but would have been infringed by one of its product ranges if it had been valid.
The parties agreed that as the Costs Budgets had been identified as reasonable and proportionate there was no need for a detailed assessment and the Deputy High Court Judge was invited to make a summary assessment of the relevant Costs Budget.
It was accepted by SSH that Sony was the commercial winner and was entitled to costs subject to a deduction in respect of certain issues where they lost.
The judge considered the first stage of the assessment was to assess Sony’s costs against its budget and that it was necessary to look at each phase and to compare that with Sony’s actual expenditure with Sony entitled to the lower of the two figures.
The approach was agreed by the parties however Sony sought to increase the budget figure for some of the phases in respect of which it had exceeded the budget by a relatively large margin. The request was opposed by SSH.
Consideration was given to Henry v New Group Newspapers Ltd from which the Judge took the following propositions.