Claimant to pay defendant's costs of the trial from specified date - brief fee paid prior to trial - brief fee not 'cost of trial'

Cantor Fitzgerald International (formerly Cantor Fitgerald International (UK) Ltd) and Another v Tradition (UK) Ltd and Others: ChD (Mr Justice Patten): 31 July 2003

The claimants sued the defendants for breach of copyright.

The defendants made an open offer to admit liability for certain infringements on 30 September 1998.

The claimants rejected the offer.

At trial, the judge held that liability had not been established significantly beyond the open offer.

He made an order as to costs against which the claimants appealed.

The Court of Appeal allowed the appeal and gave an order which stipulated that from 23 August 1998 until 6 October 1998, the start of the trial, there should be no order as to costs and that the claimants pay the defendants costs of the trial 'commencing on 6 October 1998'.

The defendants' counsel had submitted their brief fees during September 1998 and they were paid by 28 September.

Costs Judge Wright held that the brief fees were recoverable as costs of the trial.

The claimants appealed.

Simon Thorley QC (instructed by Norton Rose) for the appellants; James Mellor (instructed by Denton Wilde Sapte) for the respondents.

Held, allowing the appeal, that in deciding what meaning to attribute to the phrase 'costs of the trial', although the phrase when looked at in isolation was apt to include brief fees, the words had to be looked at in the context of the Court of Appeal judgment as a whole and that of the judge; that the Court of Appeal had regarded the period 23 August until 6 October as one in which both sides should bear their own costs until seven days after the open offer of 30 September; that where brief fees were paid prior to trial, they became costs incurred as and when they were paid and unless the court was invited to direct otherwise they would be assessed on that basis; that although Loveday v Renton (No 2) [1992] 3 All ER 184, indicated that the brief fee might include work done during the trial, in the present case the costs fell to be assessed on the basis of when they were incurred rather than on the basis of what they were paid for.