May 5, 2022
Cutting out the unnecessary correspondence in IP litigation
Cutting out the unnecessary correspondence in IP litigation

IPEC was set up to provide lower-cost alternatives for brand owners and to avoid them having to pay expensive and open-ended fees for bringing or defending IP claims.  Yet IPEC claims are still proving to be costly, and a key cost generator is the never-ending deluge of correspondence between lawyers.

When your claim is in IPEC, do you challenge your lawyer on the necessity, frequency and length of their letters? Afterall, you are paying for the letters they write, and for them to read and advise on the responses.  Did you ask them to spend a week drafting six four- pager letters on technical points of procedure – or could this have been dealt with in a short exchange of emails, or just scrapped altogether? Does the correspondence advance your case or is it legal show-boating?

Have you asked your lawyer whether they could just ignore the other side’s point scoring tactics?  Could your lawyer tell the other side that they won’t be engaging in certain discussions for lack of relevance or reasons of proportionality?  Is your lawyer reminding the other side that the claim is in IPEC where protracted correspondence is inappropriate?

What IP owning clients don’t always know is that although the IPEC procedural rules cap the legal COSTS that a litigant can recover from their opponent, the courts have no power to control the actual FEES that the litigant’s lawyers charge.  These will be charged, and paid, come what may, regardless of the recoverable costs cap.  Only clients can control their own lawyers’ fees.

IPEC is not the forum for lengthy exchanges of solicitor correspondence and the judge in an IPEC claim (and indeed in most High Court claims) will not ever see – or be particularly interested in – the legal point scoring.  So why should clients pick up the tab?

Clients should feel empowered to challenge their law firm’s litigation strategy, to query the exchange of pointless and costly correspondence, to push for fixed fees by phase in IPEC and to challenge their lawyers to stick to them.

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