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Mr Justice Carr gave a decision on 17 October in the case Hospira UK Limited v Cubist Pharmaceuticals LLC on the question of recoverable costs. The general rule in English litigation is that the winner, Hospira in this case, is entitled to its general costs of the litigation. However, Hospira did not win all points and Cubist therefore argued that Hospira should not recover its costs for those issues and, further, that certain points argued by Hospira were sufficiently circumscribable and bad that Cubist should recover its costs for those points from Hospira.
Mr Justice Carr summarised the law (Monsanto v Cargill 2  EWHC 3113, MMI v Cellxion  EWHC Civ. 139, F & C Alternative Investment (Holdings) Limited v Barthelmy (3)  EWCA Civ. 843 and Hospira UK Limited v Novartis AG  EWHC 886) and re-affirmed that the approach to awards of costs in patent cases does not differ from that adopted in other types of litigation. He commented that patent litigation is very expensive and it is important that parties should be encouraged only to pursue their best points, and to be aware of the cost implications of failing to do so. Of the ten points Hospira failed to win, Mr Justice Carr held that Hospira should pay Cubist 's costs for two, that Cubist need not pay Hospira 's costs for three but that no discount should be applied (i.e. Cubist should pay Hospira 's costs) for the remaining five.
This decision illustrates the Court 's approach to costs recovery in litigation, using costs to discourage litigants from bringing bad points.
Please see here for the full text of the decision.