In January the Master of the Rolls, one of the most senior judges in England and Wales, appointed Lord Justice Jackson to consider what changes are needed to the rules governing civil litigation costs to promote access to justice.
Last week Jackson issued an interim report in his Review of Civil Litigation Costs for consultation. The document, which extends to more than 650 pages, deals with a wide range of costs-related issues, including options for funding civil litigation, ways of capping costs, how courts assess costs and a review of systems in other countries.
The judge also considers the costs regime for IP disputes. He says that the costs involved in bringing or defending an IP claim - especially for an SME - can be "crushing" and acknowledges that there has been concern for some time about how to control costs in IP cases.
Last year, for example, the lawyers representing BlackBerry-maker Research in Motion in a patent dispute with Visto were criticised by the judge in the case for running up costs of £6 million for a five-day trial. Mr Justice Floyd described the amount in what he called "a not particularly heavy patent action" as "astonishing".
In his interim report into costs, Jackson says that his preference is for an approach proposed by Mr Justice Arnold, which would see the Patents County Court (PCC) reconstituted as a low-cost forum that would deal with claims below a certain financial threshold. Cases involving larger claims would be handled by the Patents Court.
The PCC was set up in 1990 and was designed to be a lower cost alternative to the Patents Court. But Arnold argues that streamlining of procedural rules in England and Wales means that there is now effectively no difference between the procedures in the two patent courts.
He suggests that the system should be reformed so that the PCC's procedures are based primarily on written arguments. Disclosure, experiments, written evidence and cross-examination would only be allowed at the court's discretion and where a cost-benefit test is satisfied. In addition, Arnold suggests that there should be a system of scale costs.
Says Jackson in the interim review: "Provisionally, my preference is for the course proposed by Mr Justice Arnold and I note that the Intellectual Property Court Users Committee is now proceeding down that route. Fortunately, the deliberations of the working group set up on 28th April will run in parallel with Phase 2 of the Costs Review. Provided that I receive the working group's proposals and recommendations by 31st July 2009, I shall be able to take them into account in the final report."
Jackson is due to submit a final version of the report by December.
