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Why it doesn’t pay to make London’s judges cross

Lawyers for Air Canada might be expected to have shuffled a little uneasily in their seats last week after a High Court judge declared their costs to be “out of proportion” and requiring “the closest possible scrutiny”. It’s just the latest example of London judges handing out very public rebukes to litigants and their lawyers, as Managing IP explains

Last week law firm Bird and Bird and barrister Adrian Speck received an order for costs in a long-running dispute brought by Virgin Atlantic against a seat manufacturer and three of its airline customers over the design of seats. Mr Justice Floyd described their client, Air Canada, as the overall winner in its clash with Virgin. But he was critical about the company’s cost submissions.

“Virgin’s total costs are £2.2 million. It is instructive to compare this with the total costs of the defendants,” said Floyd. “Air Canada’s costs are £2.6 million. Jet’s costs are said to be ‘over £400,000’. Delta’s costs are £410,000. Zodiac’s total costs are £3.3 million. So the total costs of the defendants in defending the claim are £6.7 million. This is over three times Virgin’s costs of bringing it.”

He went on: “These figures suggest that Air Canada's costs are disproportionately high and indicate to me that it will be necessary for the costs judge in assessing costs in this claim to ensure that there has not been unreasonable duplication of effort.”

Floyd has form when it comes to scepticism over costs. In 2008, lawyers from Allen & Overy found themselves in trouble with the High Court judge – and making headline news – after submitting a £6 million bill to RIM for advising the BlackBerry maker in a dispute with Visto.

In an order as to costs in the case, Floyd said that a breakdown of the bill “reveals some really shocking statistics”.

“If one adds up all the hours spent by RIM’s solicitors, one finds that some 9 man years have been spent over 15 months. All for a trial with no disclosure which lasted about 5 days. The picture summoned up by this bill of costs is one which is totally unfamiliar to anyone who has been involved in economically conducted patent litigation.”

But even Floyd’s exasperation seems restrained compared with that of three Court of Appeal judges earlier this month.

On November 1, lawyers for Apple trooped to London’s Royal Courts of Justice. They were there to argue to three Court of Appeal judges that the US company had complied with a lower-court order requiring it to clarify that Samsung had not infringed a design right over its iPad tablet.

The judges did not mince their words: “very disturbing”, “false innuendo” and “lack of integrity”.

They said that Apple’s website notice was inadequate, and described the company’s failure to have an advert published in national newspapers within the timeframe envisaged by the court as “lackadaisical at best”.

The website notice had been “calculated to produce huge confusion,” wrote Sir Robin Jacob.

“Mr Michael Beloff QC for Apple submitted that Apple could not be held responsible for inaccurate reporting by journalists. But it can, if it contributed to that inaccuracy by inaccurate statements and false innuendo in the Contested Notice as I consider it did,” he continued.

Jacob concluded his public admonishment by saying it “beggared belief” that Apple could not, as it had argued, comply with an order to update its website within 14 days. The company was told to get it done within 48 hours.

Do you have better examples of judges’ exasperation with the lawyers and litigants before them? If so, let us know at mip@managingip.com.

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