Simon Malynicz KC and Sam Carter acted for the appellant in the Shorts v Google matter (Judgment linked below). They were instructed by Sheridans and were successful in the decision.
The Court of Appeal has decided two cross-applications in the context of appeals and cross-appeals brought by both parties to the trial judgment in trade mark infringement proceedings, namely: (i) the Claimant (Shorts)’s application for recoverable costs of the appeal to be capped, pursuant to CPR52.19, alternatively CPR3.19; and (ii) the Defendant (Google)’s application for security for the costs of the appeal.
The decision is notable for its application of CPR52.19 to High Court proceedings where costs recovery was in place at first instance.
The proceedings were originally commenced in the IPEC – a forum where costs recovery “is normally limited” at first instance (per CPR52.19). On Google’s application, they were transferred to the High Court (where costs recovery is not normally limited), subject to agreement that the IPEC costs caps would continue to apply following transfer. Lewison LJ found that, despite the transfer, the proceedings fell within CPR52.19.
Lewison LJ then noted the mandatory wording in CPR52.19 regarding the “need” to facilitate access to justice, and the strong weight to be given to this factor. On the balance of probabilities, Shorts’ evidence established that, absent a costs-capping order, it would be unable to pursue its appeal. Lewison LJ therefore ordered that the costs of the appeal should be capped at £60,000 – the same cap which applies for a liability trial in the IPEC. He further ordered that Shorts should give security up to the level of the cap.
