Of access and excess: security for wizard costs

What better way to consume money?

No-one said that copyright infringement litigation in England and Wales comes cheap, but on 18 March 2011, in Allen (trustee of Adrian Jacobs) v Bloomsbury Publishing Ltd and J. K. Murray [2011] EWHC 770 (Ch) Mr Justice Kitchin had to decide what to do when considering an application for security for costs in an action brought against JK Rowling and her publisher for an alleged infringement of copyright in one of her Harry Potter books. In earlier proceedings Rowling and her publisher failed by a hairsbreadth to have the infringement claim struck out, but the judge ruled that it was suffficiently arguable to get to trial. Now, back to the security question:

"84. I must now decide what sum to award by way of security. I have before me an estimate of Bloomsbury’s costs to date and to carry these proceedings through to a conclusion in the total sum of £723,819. I have a similar estimate of Ms Murray’s costs in the total sum of £1,644,660.  The combined total of the defendants’ costs is therefore £2,368,479. By contrast, Mr Allen estimates that his costs to date, excluding the deferred element, are some £800,000 and that he will incur further costs of about £500,000 to carry the proceedings through to a conclusion.

85. In deciding what sum to award by way of security, I bear in mind that I should not make an order that will deny Mr Allen access to justice although, for the reasons I have given, I have reached the conclusion that I have inadequate information in this regard from Mr Allen, and that he has been far from full and candid in setting out the means available to him. Accordingly, this is not a factor to which I believe it is appropriate to attach great weight.

86. Other criticisms of the defendants’ costs estimates do, however, seem to me to have more substance. I recognise that Mr Allen has chosen to sue two separate defendants but I question whether they each need to be represented by leading and junior counsel. Moreover, the estimates for the fees that may be incurred in that regard do seem to be unreasonably high. Further, although I recognise the serious nature of the allegations made and the importance of the case to both defendants, the defendants’ estimates do seem to me to include costs in respect of unduly large numbers of separate fee earners, excessive communications with clients, and unwarranted time for consideration of disclosure and preparing experts’ reports. At this stage any attempt to estimate the costs that are likely to be recovered must necessarily be fairly rough and ready in light of the difficulty in assessing the extent of the work that remains to be done. But doing the best I can in all the circumstances, I have reached the conclusion that the proportion of the defendants’ cost estimates I should require Mr Allen to provide by way of security is 65 per cent".

Who says you have to be rich to litigate?

Today's proposals by the British government for protecting unsuccessful defendants in civil proceedings against crippling costs here.