Much ado about CJEU referral costs in the PCC

With one paw precariously
on its tail, the AmeriKat snares
her mouse. If only the recovery
of costs following a CJEU referral
was so easy....

Last week the AmeriKat was perching above the Rolls Building listening to His Honour Judge Birss QC and his fellow panellists discuss the past and future of the Patents County Court (PCC) (see report here). As part of the Q&A session, the AmeriKat raised a question of how the costs of a CJEU referral in the PCC could be dealt with given the esoteric PCC costs rules. The question remained unanswered.

Cue IPKat friend Richard Ashmead who has this to say:

At the end of your PCC report the other day you referred to a question from the floor about costs capping in PCC references to the CJEU, which Colin Birss could not then answer. I can’t either but I have some thoughts from my only experience of a CJEU reference in the IP TRANSLATOR case.

Briefly it seemed to me that the reference part of the case was the court’s (ie the Appointed Person’s), not the parties’. In our case the Appointed Person decided that a reference was necessary, settled the questions to be asked, drafted the other written material required by the CJEU, and made the reference order which stayed the IP TRANSLATOR appeal. From that point CIPA was invited to file written observations, to make submissions on whether a hearing was required and, optionally, to turn up in Luxembourg for a half-day hearing with I think a 25 minute slot for oral submissions from CIPA.

Richard Ashmead

There was in that case an unusually high, possibly record breaking, number of written observations and/or oral submissions from member states which increased CIPA’s workload somewhat, but my point is that a reference is limited to the legal questions the UK court refers, has limited opportunities for input from the parties, and as a result should need to be no more costly than, say, a PCC hearing.

Naive perhaps, but one of the successes of the PCC is in limiting the opportunities for high court style extravagance, so perhaps there is a natural affinity of approach between CJEU references and the PCC - save in the matter of how long a reference takes!

Finally the CJEU in its judgment did refer to costs as follows:

“Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable”.

So, the AmeriKat wonders, should the costs of a CJEU reference in a PCC case only be the scale costs of "making or responding to an application" (i.e. £2,500 max per party) (CPR 45PD.11)? Could there be amended rules which would allow the PCC to apply that bracket a couple of times in the case of a CJEU referral (although admittedly £2,500 would barely cover the costs of a referral where the parties are catapulted (or is that Kat-a-pulted) to Luxembourg)? Could a CJEU reference be considered a "separate action" for the purposes of costs? And another side point, what happens to costs when there is more than one application in a PCC case? What do readers think should happen to costs of references?