The High Court has ordered litigants who ignored correspondence from the other side to pay for the resulting costs. Chief Master Marsh, sitting in the Chancery Division, said it was ‘unacceptable’ for defendants in a patent case to simply ignore letters and proceed without proper engagement.
London firm Mishcon de Reya had written on 8 September to two firms of solicitors acting for the defendants in a case concerning the trade in plant protection products and suggested there was no longer a need for expert evidence.
It asked two defendants, represented by London firm Isadore Goldman, to provide proposals about how their evidence would be produced.
Having received no reply, Mishcon de Reya wrote again on 21 September, to which there was against no response.
Following a telephone call, a final letter was sent on 5 October giving the defendants two days to respond, or an application would be made seeking an order that the defendants in question could not rely on expert evidence. This application was issued on 10 October.
Isadore Goldman provided a statement on 20 October saying its clients were well advanced in preparing expert evidence and at a hearing six days later the claimants dropped the principal relief sought in the application.
Mishcon sought the costs of the application saying it was necessary, had been successful and was unreasonably contested.
Isadore Goldman countered that the claimants took an ‘unduly aggressive stance’ in pressing for the application.
In UPL Europe Ltd & Anor v Agchemaccess Chemicals Ltd & Ors, Marsh said this was a plain case in which an order for costs should be made in favour of the claimants.
He noted that any characterisation of the claimants’ approach as aggressive ‘bears no relation to reality’.
The judge added: ‘It was necessary for the issue to be brought to the court for a determination because there was a lack of engagement by the first and third defendants.
‘It was then necessary for there to be a hearing in view of their apparent attempt to wrong-foot the claimants by producing expert evidence without any consideration of its scope and the methodology for its production.’
Allowing for a ‘modest adjustment’ as primary relief was not sought, the defendants were ordered to pay 85% costs, equating to £14,821.