NIPC Law

As I mentioned in "Intellectual Property Litigation - the Funding Options"  10 April 2013, it was possible until the 31 March 2013 for a litigant to enter an agreement with his or her solicitors and counsel known as a  conditional fee agreement ( "CFA" ) whereby the lawyers would look to the other side for payment not only of their assessed costs but also of an uplift known as a success fee and the premium for insurance against their own and the other side's costs in case of failure known as  after-the-event ( "ATE" ) insurance if they won the case or obtained a satisfactory settlement. As I also mentioned in that article, it is still possible to enter a CFA but any success fee and ATE insurance premium must now be paid by the successful party - usually out of any damages or accountable profits he or she may receive. On 1 Oct 2010 CPR Parts 63  and 45  and the corresponding Practice Directions were amended for proceedings before the Patents County...

Until the 31 March 2013 it was possible to enter a conditional fee agreement ( "CFA" ) whereby the other side would pay any success fee. Similarly, it was possible to look to the other side to pay an after-the-event  ( "ATE" ) insurance premium.   In his  Final Report  S ir Rupert Jackson  recommended that success fees and ATE insurance premiums should cease to be recoverable from unsuccessful opponents in civil litigation as those costs were "the major contributor to disproportionate costs in civil litigation in England and Wales".. S.44 (4)  and s.46 (1)  of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 which came into effect on 1 April 2013 carried those recommendations into effect.  It is, of course, still possible to enter a CFA and take out ATE insurance but any success fee or insurance premium has to be paid by the successful party out of any damages that the successful party may receive. ...

We have an adversarial system of civil litigation in England and Wales as do most other English speaking countries. In an adversarial system the parties choose the issues over which they wish to fight and produce the evidence that they want the tribunal to consider. By contrast, most of the rest of the world has an inquisitorial system where the tribunal leads an inquiry into the facts. Each system has its advantages and it is beyond the scope of this article to decide which is superior but one advantage of the inquisitorial system is that it is very much cheaper. In the New Patent County Court Rules , Why IP Yorkshire and many other articles as well as in my book Enforcing Intellectual Property Rights I referred to the IPAC report The Enforcement of Patent Rights that compared the costs of patent infringement litigation in France, Germany and the Netherlands in 2003 (between 10,000 and 50,000 euro) with the costs in England and Wales (£150,000 to £250,000 in the Patents County ...