Where proceedings are transferred from IPEC to the Patents Court, a transferring judge’s indication that pre-transfer costs should be assessed on the IPEC scale carries significant weight and should only be departed from for good reason.
Where proceedings are transferred from the Intellectual Property Enterprise Court (IPEC) to the Patents Court, the IPEC’s power under Practice Direction 30 paragraph 9.2(1) to “specify terms for such a transfer” includes the power to order that costs incurred prior to transfer be assessed in accordance with the IPEC scale costs caps in any event. [150, 151]
If the transferring court does not make an order specifying that pre-transfer costs are to be assessed on the IPEC scale, the court that finally determines the proceedings retains a discretion as to whether to apply the IPEC scale to those costs. [151]
When exercising its discretion on pre-transfer costs, the receiving court should treat any clear indication given by the transferring judge regarding the applicable costs regime as a starting point, and should depart from it only if there is a good reason to do so. [153]
The purpose of the IPEC scale costs regime is to provide litigants with certainty about their potential costs exposure from the outset of proceedings, favouring predictability over a fully compensatory approach. [148, 149]
In the absence of a specific order made on transfer under PD 30 paragraph 9.2(1), there is no automatic rule that costs incurred in IPEC prior to transfer are confined to the IPEC scale; the general discretion of the court as to costs applies. [146, 151]
