IPEC's Updated Costs Caps - What is the Effect?

The costs which can be obtained in the Intellectual Property Enterprise Court increased on 1 October 2022 from ￡50,000 to ￡60,000 for the liability stage (with disbursements and VAT possibly on top of that amount at each stage but not on the ￡60k cap).

Importantly, however, the stage costs have gone up - but not equally across the board. The stages which have changed are:

Particulars of claim - 7000 to 9000

Defence and Counterclaim - 7000 to 8000

Applying for or defending an Application - 3000 to 4000

Case Management Conference - 3000 to 6000

Witness Statements - 6000 to 8000

Preparing Expert Reports - 8000 to 9000

Preparing for and Attending Trial - 16000 to 20000

Things which have not changed include disclosure, reply to defence to counterclaim and providing experiments.

This reflects where cost tends to be spent. One criticism has been that the CMC costs (previously ￡3000) were insufficient given the work that goes into a CMC: this is remedied to some extent by the new cap, but we shall have to see how that is dealt with where a party files applications before the CMC (which is when most are filed) - there is a tendency to award a lower amount than that sought on the basis that the oral submissions are made at the same time as the CMC (many applications are heard alongside the CMC).

The lack of change for the cap relating to a reply to defence to counterclaim and that for disclosure is not surprising: as to the former, it was a fairly generous amount under the former cap; as to the latter, the IPEC has as a default position that disclosure is dispensed with save for adverse documents, and the Court is live to parties trying to "push" witness statement costs (ie. collating evidence) into that cap under the guise of "assessing whether evidence needed to be disclosed".

Does practice need to change to obtain greater recovery under the new caps? Probably not, but it should make parties more likely to spend an appropriate amount of time on the CMC - there was a tendency to not spend adequate time on it, with the effect that work was pushed back to the later stages: the IPEC is intended to be "front-loaded", with lesser work in the later stages. The stage costs for trial remain inadequate for most of those who engage specialist barristers, but to some extent that inadequacy reflects a desire to dissuade from going to trial.