Judge: Henry Carr J.
Citation:  EWHC 2549 (Ch.)
An application for an anti-suit injunction in the course of a patent infringement action was compromised. The court awarded the claimant their costs on the basis that the claimant had succeeded.
In the course of a patent infringement action, the Claimant applied for an anti-suit injunction against the Third Defendant which was compromised after the Third Defendant made significant changes to its pleadings in parallel Chinese proceedings. The Claimant sought its costs following the compromise. The Court held that the Claimant had succeeded in its application for an anti-suit injunction and it was obvious that it would have succeeded on the application had the parties not reached an agreement. Those aspects of the Third Defendant’s targeted claims in the Chinese proceedings which had now been agreed to be deleted or amended were vexatious in that they sought to obstruct or could have the effect of obstructing proceedings before the English court. They could also have undermined or frustrated the performance of a Judgment given by the English court. The court referred to both Brawley v Marczynski and BCT Software Solutions Limited v C. Brewer & Sons Limited, noting that those authorities concerned compromise of a trial where witnesses may have given evidence and been cross-examined. The application before the court concerned the compromise of an interim application with no cross-examination. It had, however, been fully argued before the Judge before it was compromised. The Claimant had also claimed against the Fourth Defendant, which was not a party to the Chinese proceedings and had not participated in them. The Claimant was awarded its costs against the Third Defendant, subject to a deduction of 5% to recognise the fact that the application against the Fourth Defendant had been dismissed.