Not pennies from heaven, but pounds for Sky

Sky-bound interim cost payment ...

Some folk agree to differ. Other folk don't even get that far. And so it is that Starbucks (HK) Ltd and others v British Sky Broadcasting Group plc and others is a saga that just runs and runs.  Compared to the Battle of the Buds, this spat between the NOW Community trade mark and Sky's NOW TV mark may be a storm in a tea (coffee?) cup, and it does not appear to have seriously spread beyond England and Wales, but it has kept many IP litigation enthusiasts entertained this year. So far we've had (i) an application for a speedy trade mark infringement trial, countered by an application to stay infringement proceedings completely pending the outcome of invalidity proceedings, here, (ii) an unsuccessful appeal against the decision to order a speedy trial and not to stay the infringement proceedings, here, (iii) the speedy trial itself, with the classic line about the "figurative figleaf of distinctiveness", in which Mr Justice Arnold held Starbuck's trade mark invalid and uninfringed, here, and (iv) the refusal of the Supreme Court to hear Starbucks' appeal, a panel of that august tribunal holding that there was no reason to seek the guidance of the Court of Justice of the European Union on any preliminary point of law, here.

To the IPKat's surprise and amusement, the same parties were back in court again on Monday of this week, arguing over a costs problem. Thanks to a neat little note on the Lawtel subscription service, the fruits of Mr Justice Arnold's extempore ruling on this point can be shared with you.

Following the speedy trial, the court determined a figure of £600,000 as an interim payment on account of costs to Sky, this being the figure which represented what the note describes as "the irreducible minimum that was likely to be recovered following a detailed assessment".  There was a problem, though: the speedy trial was a bit too speedy: while it was reasonably expected that the contest would consume a good five days but ran out of steam after just three.

Sky, applying for payment of those interim costs, estimated that its costs had been £996,122.48 -- which was less than the £1.1 million estimate that it had provided in its earlier allocation questionnaire -- and submitted that an interim payment of £650,000, which represented 65% of the likely final award, was appropriate, particularly since the expedited trial meant that a large amount of work had to be finished within a relatively short period of time in order to meet the trial timetable. Starbucks disagreed: surely an interim payment of £300,000 was more appropriate, since Sky's estimate of costs was Sky-high for a short trial and its estimate was insufficiently itemised.

Arnold J stated that it was the court's objective to determine a sum which represented the irreducible minimum of costs that were likely to be recovered following a detailed assessment. It was true that Starbucks had not had the benefit of a more particularised estimate from Sky, but nor had it criticised the hourly rates charged by the latter's legal representatives, the disbursements and counsel's fees which had been identified. Sky's estimate of costs was lower than was previously estimated in its allocation questionnaire and the reality was that Sky was likely to recover a higher sum than Starbucks had suggested.  All in all, an interim payment of £600,000 was therefore appropriate.