[The IPKat] [Guest post] Retromark Volume XVII: the last six months in trade marks

[Eleonora Rosati]

[Guest post] Retromark Volume XVII: the last six months in trade marks

 Eleonora Rosati Thursday, February 26, 2026 - Darren Meale; trade marks; Retromark

Darren Meale of Simmons & Simmons presents the seventeenth volume of his rundown of notable trade mark cases over the past six months.

Retromark Volume XVII: the last six months in trade marks

by Darren Meale

It’s been nearly nine years since a much younger me (pictured in Volume 1) started Retromark. Fast forward from 2017 to 2026 and the cases keep coming thick and fast, with the Court of Appeal providing half of this volume’s judgments and the IPEC, High Court, CJEU and the UK Supreme Court completing the line-up. If you want more of the same, don’t forget to join us at Retromark: the conference on 26 March 2026. There’s still a few tickets left if you haven’t signed up yet!

1. Adidas Just Dropped In to the Court of Appeal (to see what position my position was in)

Thom Browne Inc & Anor v Adidas AG [2025] EWCA Civ 1340 (October 2025)

In Volume 15 I covered Adidas’ unsuccessful attempt to assert its “three stripe” position marks against Thom Browne. I noted that that case was essentially the English law authority on position marks, but now that the Court of Appeal and Lord Justice Arnold have considered the matter, this is that authority.

As I summarise in Volume 15, this complex case dealt with 16 position marks (each comprising an image and a description). The High Court concluded that eight were valid and eight were invalid. The invalidity was found chiefly because the marks were insufficiently clear, imprecise and were uncertain in their scope as they involved a multiplicity of signs. Of the eight valid, none were held to be infringed by Thom Browne. On appeal, Adidas sought to overturn the invalidity finding on six of the eight only, with infringement no longer pursued.

As ever, it was the presence of descriptions that caused the greatest trouble for Adidas (see Babek below for more on their generally troublesome nature). The Court of Appeal upheld the trial judge’s invalidity findings for the six appealed marks, on the basis that in each case reading the image with the description gave rise to a multiplicity of signs (or, to put it another way, consumers would not just see one).

Position marks are a curious beast, their significance, as Arnold LJ noted, being that “their distinctive character derives at least in part from their positioning”. For me, another part of their significance is that this position must provide some additional ability, such as increasing the distinctiveness of the mark and potentially elevating it from non-distinctiveness (or perhaps broadening its scope of protection). If a position mark did not have such a significance, I cannot think why an applicant would seek one over a simple figurative mark. Put another way, why apply for “my logo as positioned on the left arm of the jacket” if it is more straightforward to just apply for “my logo”?

The Court of Appeal provides, in true Arnold LJ style, a detailed exploration of the relevant legislation and authorities which I shall not attempt to summarise, focusing on the three conditions also explored in Babek below. Arnold LJ then went on to reject each of Adidas’ four grounds of appeal, finding no error of law or principle in the trial judge’s assessment. In a brief second judgment, Lady Justice Falk concluded that, in relation to the significance of positioning “If that position is not clearly specified, then the registration requirements may well not be met”, and that really sums up why Adidas was unsuccessful.

IPKat here. The Big Lebowski reference here.

2. Attack on an “embossed” mark’s description not worthy of a backwards kebab

Babek International v Iceland Foods [2025] EWCA Civ 1341 (October 2025)

The Claimant registered its BABEK (kebab spelt backwards) mark in the stylised format shown below, including an optional description. Adding a description to a trade mark application is almost never a good thing, and here it (again, see above) led to litigation all the way up to the Court of Appeal.

As part of its strategy for tackling an infringement claim brought by Babek, UK supermarket chain Iceland decided to go to the trouble of bringing an application for summary judgment on the basis that Babek’s mark was invalid as a direct consequence of the description – it being alleged to be ambiguous and/or inconsistent with the visual representation. Now, most of us would rightly react with surprise to that punchy position, which was ultimately described at first instance by HHJ Hacon in the IPEC as involving "fairly high grade pedantry". He dismissed arguments that the reference to “Gold, black” was insufficient or incorrect and that the reference to “embossed” misleadingly implied that the mark was three-dimensional. One wonders whether those arguments were dreamt up over a kebab by a person falling into the second category of consumers contemplated by the trial judge in Morleys (see Volume 16).

Somehow, HHJ Hacon’s rejection of these unconvincing arguments gave rise to six grounds of appeal, two of which were upheld by the Court of Appeal, causing them to reassess the matter themselves. The first error was applying a “capacity to distinguish” test. Under this test, where a mark contains colour (but is not a colour per se), the hue of the colour needed to be specified if only a particular hue would confer on the mark a capacity to distinguish. This test arose out of a 2019 case of HHJ Hacon’s by the name of J Sainsbury plc v Fromageries Bel SA, concerning the Babybel cheese (see Volume 7). Lord Justice Arnold, with whom Zacaroli and Newey LLJ agreed, held that this test was wrong. Rather, the judge should have considered whether the mark satisfied three independent and cumulative conditions derived from EU law, being whether it was: (1) a sign; (2) capable of graphical representation; and (3) capable of distinguishing. These could not be replaced or rolled into a “capacity to distinguish” test. The second error concerned the judge’s consideration of registrations by Coca-Cola and Tesco as examples of other marks that included colour descriptions that did not use a precise colour code (eg, a Pantone code). It was not clear that the reference to these marks had involved any positive findings by the judge in this case. Nonetheless, Arnold LJ considered including them as an error as neither was in evidence in this case (rather, they had been in the Sainsbury case the trial judge had referred to above).

Thankfully, Arnold LJ still – considering the description from the perspective of a notional “reasonable reader” just as HHJ Hacon had – reached the same obvious decision, largely for the same reasons as HHJ Hacon, and the summary judgment application remained dismissed.

My advice: don’t put a description when there’s no need to do so! IPKat here.

3. AI-generated images bearing Getty Images’ watermarks a trade mark infringement

Getty Images v Stability AI [2025] EWHC 2863 (Ch) (November 2025)

This fascinating case about copyright in the Generative AI world ended rather disappointingly for many, when the claimant failed to establish any infringement, whether in copyright or trade marks, other than a trade mark infringement described by the judge as “historic and extremely limited in scope”.

The defendant produced generative image creation models, made available open-source, which are widely used today. The technology is, or has evolved to become, nothing short of miraculous in allowing the creation of realistic, complex imagery that I wager few individuals could now distinguish from reality. These models are “trained” on a very large number of real (not-AI generated) images. In this case, those images undoubtedly included ones to which Getty owned the copyright, and which included its familiar “gettyimages” and “iStock” watermarks.

The claim of greatest interest – Getty’s claim of copyright infringement in relation to the use of its images in the training of the defendant’s models – ultimately could not be pursued in the UK because there was no evidence the training took place in the UK, a necessary precursor to liability in the English courts. By the time the trial concluded, Getty was left pursuing only a claim of secondary infringement of copyright and a claim that use of the defendant’s models by users in the UK would sometimes lead to the generation of synthetic images bearing Getty Images' own trade marks. This being a trade mark blog, I will now consider only the latter.

Before getting into this area further, it is crucial to understand that while this case was and will be talked about in relation to the bigger AI picture, the judge’s 759 paragraph judgment is extremely fact sensitive. Getty’s victories were limited in part because the precise models and uses of those models by Stability it relied on were historic, Stability having moved on to other models not covered by the claim. Further, Getty lost on other points because although Stability’s technology has been used to create perhaps millions of images by the public, only a small selection were in evidence and able to be subject to findings of fact. For example, Getty was unable to point to any image in evidence in which its “gettyimages” watermark had been replicated identically, although could do that in relation to its “iStock” watermark – albeit not in relation to Stability’s later models.

In this context, the judge went on to find 10(1) and 10(2) trade mark infringement against specific example images showing the reproduction of gettyimages or iStock watermarks. There was evidence of reproduction of identical marks for iStock, but only similar reproduction of gettyimages marks. There was use in relation to identical goods covered by Getty’s registrations, including “downloadable digital illustrations and graphics" in Class 9. Perhaps more interestingly, there was trade mark “use” by Stability, the judge holding that output images from Stability’s models:

will be perceived by the average consumer as a commercial communication by Stability […] The Signs are affixed to synthetic images generated by customers owing to the functionality of the Model, itself dependent upon its training data (over which Stability has absolute control and/or responsibility). It is in this way that Stability "offers and puts synthetic images bearing the Signs on the market" and this is Stability's commercial communication to the consumer […]

The infringement did not extend to 10(3), there being no evidence of the change in economic behaviour required, no evidence that Stability’s models had produced pornographic material bearing their watermarks to support a tarnishment claim, and no valid basis for an unfair advantage claim.

An example of an AI-image Getty accepted did not reproduce its watermark clearly enough for it to succeed in a claim to 10(1) double identity infringement

The trial judge granted Getty permission to appeal her finding on secondary copyright infringement, but denied Stability permission to appeal the trade mark findings. I have yet to hear whether Stability has separately sought permission direct from the Court of Appeal on those points.

Given the depth of this case, you should really read more than my summary. More detail from my colleagues at S&S is found here and from the IPKat here.

4. DRYROBE beats D-ROBE: a demonstration of the power of acquired distinctiveness

Dryrobe Limited v Caesr Group Limited [2025] EWHC 3167 (IPEC) (December 2025)

From 2011, the claimant was the first to offer a drying and waterproof changing robe (aimed at the likes of surfers and swimmers) on the UK market and appears to have established a leading market position for this and related products, with revenue of £23m by 2023. The defendant appeared in 2021, by then one of many competitors. There was evidence that the defendant’s brand consultancy considered D-ROBE to be a brand that steered away from the claimant’s. The claimant disagreed and sued for trade mark infringement and passing-off. The defendant counterclaimed for invalidity of the claimant’s registrations on the basis that they were descriptive or generic.

If you had five minutes to decide this case, you might hold that (a) the mark DRYROBE for a robe one wears to get dry in is surely descriptive, and (b) even if it has marginal distinctiveness, the scope of its protection should be extremely limited, such that D-ROBE, a mark that could be said to coincide in only the non-distinctive elements, is not an infringement. But that would fail to take account of the claimant’s claim to acquired distinctiveness.

HHJ Melissa Clarke, hearing the case in the IPEC, did find the DRYROBE mark inherently non-distinctive (but not, on the evidence, generic (the UKIPO had had no trouble granting it on either basis)). But turning to the question of acquired distinctiveness, the claimant’s impressive revenue figures were backed up by millions spent on marketing; Adwords spending; extensive national press coverage; supplying Team GB for the 2016 Olympics and Paralympics and again in 2022 and 2024; appearances on TV programmes from Top Gear to Comic Relief and Children in Need; industry awards; and so on. The claimant had also rolled out an extensive brand protection and education programme, including to combat genericism – the latter campaign described as “relentless” by the judge. This evidence, along with some concessions in cross-examination from the defendant (including that by 2024 the claimant was “the biggest player” in the UK changing robe market) led the judge to conclude that acquired distinctiveness had been established by the time of the defendant’s first activity in 2022.

As the mark was valid, the matter would be determined on the similarity of the competing marks and whether that similarity would result in a likelihood of confusion. The claimant relied on a significant amount of evidence of what it claimed was actual confusion in the market, including customers trying to return D-ROBE products to the claimant. While the defendant sought to portray this evidence as a reflection of inattentive consumers who had made administrative mistakes (a category of consumer which, in my experience, is much larger than us attention-to-detail paying lawyers would expect), the judge was convinced that at least some of it indicated genuine confusion.

That might not have been the end of it, had the defendant been able to establish that the scope of protection to be afforded to the descriptive mark DRYROBE should be limited such that, overall, there was no likelihood of confusion in a trade mark sense even if there was actual confusion (the two not being the same thing). The defendant argued that the sharing of ROBE in each mark should be discounted in the similarity analysis, given this was a purely descriptive element. The judge was not willing to do this, deciding that the marks had a high degree of visual similarity (sharing five letters in the same order) and that consumers would consider the hyphen in D-ROBE to represent the missing letters RY. The judge did indicate agreement with a large part of the submissions and references to supporting case law made by the defendant regarding the limited scope of protection of a descriptive mark, even one which had acquired distinctiveness (see paragraphs 173, 179, 181 of the judgment). But the judge came down on the claimant’s side, again noting her finding that consumers would perceive the hyphen in D-ROBE as a replacement for the RY in DRYROBE. She was not willing to accept that, having chosen a descriptive name, the claimant had to put up with a degree of confusion.

There’s no doubting that DRYROBE was a weak mark. Its acquired distinctiveness not only allowed it to survive, but also – it seems to me – to overcome the limitations of its descriptive elements when it comes to enforcement. The fact that, for example, the presence of the purely descriptive element ROBE in the defendant’s name was not ignored in the confusion analysis tells us that once your mark gets over the registration line (by being just inherently descriptive enough or having acquired distinctiveness), choosing to use the same descriptive element in a competing mark may contribute to your downfall. I wonder what the judge would have decided if, for example, the defendant’s mark had been the also descriptive DRYINGROBE?

IPKat here.

5. Low scope of protection for Athle- word marks upheld, but Court of Appeal still intervenes to reassess the details

Athleta (ITM) Inc v Sports Group Denmark A/S [2025] EWCA Civ 1584 (December 2025)

This is another case about descriptive marks, or, rather, marks where the common element is derived from the same descriptive word. It is also another case where the Court of Appeal decided to disturb (in part) the trial judge’s finely balanced multi-factorial assessment and overturn some of the first instance findings.

The claimant, Athleta, part of Gap, makes women’s activewear clothing. So does the defendant, Athlecia. The claimant sued the defendant for trade mark infringement and passing off, the defendant counterclaiming for non-use and invalidity on the basis of non-distinctiveness. Deputy High Court judge David Stone upheld the validity of Athleta’s marks, and the table below summarises his findings on the extent of conflict between the competing rights:

The trial judge found that the marks at (2) – the only pairing for which he found for the claimant – were “highly similar”, but that the pairing at (3) was only “moderately similar”. He also found (1), ATHLETA v ATHLECIA, highly similar. He understandably noted that both words were based on “athlete” or “athletic”. He concluded that the shared element – ATHLE – was descriptive, that ATHLETA was weakly distinctive with a narrow scope of protection, and so he should not find infringement between the word marks. By contrast, he considered the line had been crossed by at (2) – the similarity between the roundels overcoming the limitations of the word element.

The Court of Appeal upheld the judge’s findings on the lack of a likelihood of confusion between the two word marks at (1), unable to find any error of law or principle in his approach. However, the Court of Appeal did not like the distinction drawn between (2) and (3). The trial judge had indicated at paragraph 117 of his judgment that the position of the roundel did not make a significant difference to visual similarity, but when later considering the match ups at (2) and (3), he considered the difference in position enough to make one an infringement and the other not. Lord Justice Arnold, giving judgment to which Miles and Singh LLJ agreed, thought this difference “on any view a significant one”. He therefore felt the inconsistency permitted the Court of Appeal to reassess. Arnold LJ considered that consumers could easily misremember the arrangement of the word and the device and that there was no material difference in the degree of similarity, so there was a likelihood of confusion for (3) as there was for (2).

I think this decision by the Court of Appeal is unfair to the trial judge. It is obvious to me that the trial judge found this to be a finely balanced case, whereby, on balance and taking everything in the round, (2) fell the wrong (infringing) side of the line while (3) fell the right (non-infringing) side of the line. Trade mark cases call for the decision maker to pick a side; they cannot sit on the fence. It is perfectly possible for a case to teeter on the edge, 49.9% or 51.1%, a very tiny difference (or, put another way, fall to be in the discretion of the judge on the day). The supposedly inconsistent finding of the judge at paragraph 117, which the Court of Appeal used to justify its interference, was that the difference between the placement of the roundels would not make “a significant difference” but that it “will make some”. In my view, “some” is enough to tip the balance one way or the other.

The Court of Appeal also reversed the trial judge’s finding on passing off on the basis that his assessment of the facts – that the claimant did not have goodwill in the sign at (4) – was rationally insupportable. This reversal appears more reasonable. The trial judge noted £1.1m in sales by the claimant, including in John Lewis, by reference to photographs that apparently featured the sign at (4). No explanation was then provided for concluding that there was goodwill in the word mark (but no misrepresentation, mirroring the finding on infringement), but not in the combination sign. I wonder if rather than being a mistake this was a failure to explain the distinction drawn; absent the explanation, the Court of Appeal concluded it was free to reassess and find goodwill. The trial judge having already indicated he would have found a misrepresentation at (4) had there been goodwill (again mirroring the infringement finding at (2)), passing off followed.

So the claimant’s limited win at first instance becomes a broader win, perhaps with the difference ultimately to be reflected in the extent of damages or account of profits to be paid over by the defendant.

6. No second helpings for either party as Court of Appeal upholds the High Court in this cooker caper

Aga Rangemaster Group Ltd v UK Innovations Group Ltd [2025] EWCA Civ 1622 (December 2025)

I covered this case at first instance in Volume 15. UKIG sold retrofitted AGA cookers and systems to convert existing AGAs from gas to electricity. Before the High Court, it was held to have infringed Aga’s trade marks. UKIG could not rely on exhaustion because of the manner in which it marketed its retrofits, giving the impression that UKIG offered a product originating from Aga with statements such as “Buy an eControl Aga”. This provided Aga with a legitimate reason to negate exhaustion, because it gave consumers the impression of a connection between the parties. However, Aga’s copyright claim in relation to a control panel drawing failed because of section 51 of the CDPA 1988.

Both the trade mark and copyright findings were appealed, the former by UKIG and the latter by Aga. Sir Colin Birss, Chancellor of the High Court, gave the lead judgment on the former, while Lord Justice Arnold gave judgment on the latter. Both upheld the trial judge’s decisions.

On the trade mark front, UKIG first argued that the trial judge had applied the wrong test for determining whether consumers could or could not determine whether there was a connection. The trial judge had drawn on the Google France test in the context of search engine keyword marketing to apply a test based on whether the average consumer could ascertain no connection only "with difficulty". That was an error, agreed Sir Colin Birss C, but not one the trial judge had actually carried through into his reasoning – and so not an error to justify overturning his decision. Beyond that, the trial judge’s consideration both as to the type of connection perceived by consumers and the balance to be struck between the competing parties’ interest was found to be free of errors and the appeal on this ground failed. A second ground of appeal, based on an allegation that the trial judge’s factual finding that UKIG’s use of “eControl AGA” would be understood to refer to a product of the claimant had been rationally unsupportable (a high bar), also failed. Sir Colin Birss C considered it no such thing – stating he would have reached the same conclusion.

On the copyright front, Aga argued (1) that the AGA control panel design was an artistic work – specifically a graphic work – such that section 51 would not apply; or (2) section 51 should now be regarded as incompatible with EU copyright law following the decision in cases like Cofemel. Section 51 allows the making of an article to a design in a design document without infringing copyright and is directed at removing copyright protection from functional items. It does not apply to artistic works. Arnold LJ agreed with the trial judge: the control panel incorporated artistic and graphic elements but, considered as a whole, was not a graphic (and therefore, not an artistic,) work. He then went on to decline to decide (2), considering it to be of purely academic interest in post-Brexit UK.

IPKat here.

7. Accounts of profits not a luxury available to the victims of unjustified threats, says IPEC in Luxe World

Luxe World Ltd v Touch of Vogue Ltd & Anor [2026] EWHC 148 (IPEC) (February 2026)

IP lawyers will be familiar with the election between damages and an account of profits made by every successful claimant, typically following a trial on liability only. IP lawyers will also be familiar with the law on unjustified threats, which allows a person aggrieved by threats of certain unjustified IP infringement proceedings to bring their own counterattack and seek recompense for harm caused.

This interesting little decision of the IPEC holds that such aggrieved persons are limited to claiming damages and are not able to claim an account of any profits made from the unjustified threats. Such profits might arise, for example, if the wrongdoer threatened a supermarket with trade mark infringement proceedings unless it sold the wrongdoer’s product instead of the allegedly infringing aggrieved person’s products.

The case concerned allegations of infringement of a registered design, but its reasoning is applicable to trade mark infringement, which has comparable unjustified threats provisions. HHJ Hacon found that there was no express right to an account of profits for unjustified threats in any statute, and dismissed the claimant’s argument that the court had an equitable discretion to award such an account – unjustified threats not being a claim concerning the invasion of a proprietary right (the type of matter accounts were primarily reserved for).

Notwithstanding the numerous letters I have received over the years trying to argue the contrary, it is actually quite difficult to make an actionable threat, particularly following the reforms made in 2017. Indeed, I can’t recall a case awarding damages for such threats in the almost-decade I have been writing this blog – although no doubt, dear reader, you will correct me if I have missed one!

IPKat here.

8. Enforcement at the EUIPO requires an earlier right with a persistent lifetime

EUIPO v Nowhere Co Ltd (Case C‑337/22 P) EU:C:2026:71 (February 2026)

One of the many things destroyed by Brexit were cases pending before the EUIPO that relied on a UK-only right, namely passing-off. If I had a passing off right when the contested mark was applied for, can I win the opposition even though Brexit came and removed English passing off as a ground of opposition? No, said the EUIPO; yes, said the EU General Court; no, concludes the CJEU with the final word.

In doing so, the decision confirms, beyond the Brexit context, that prevailing in a dispute before the EUIPO requires an earlier right that remains present and enforceable right up to the moment of any decision on appeal to the EUIPO Board of Appeal. That moment may come years after the opposed application is filed, and (for example) after the earlier right becomes vulnerable to non-use attack.

If you litigate before the EUIPO but the consequences of this confirmation are not crystal clear to you, I highly recommend you read this case in full or at least some of the many commentaries, as it has a crucial impact on EUIPO litigation strategy (with a stark contrast to the position before the UKIPO). It is also inevitably going to ensure that more and more EUIPO cases go on for longer and longer. Take a look at some of the commentary here, here and here.

9. Supreme Court rules in milk-based decision of the Century: Oatly’s POST MILK GENERATION invalid

Dairy UK Ltd v Oatly AB UKSC/2025/0004 (February 2026)

For a case turning on the interpretation of Council Regulation (EU) No. 1308/2013 of 17 December 2013 establishing a common organisation of the markets in agricultural products, this Supreme Court judgment has received press coverage by the pint full.

Oatly, a Swedish company, is probably the market leader for oat “milk” in the UK. The whole point of Oatly is that you know it is not milk, because you drink it as a vegan-friendly non-animal product (at least that is what I thought, as an ordinary consumer of semi-skimmed cow’s mammary secretions (I’m borrowing from the definition in the Regulation here).

Oatly registered the slogan POST MILK GENERATION at the UKIPO. Dairy UK, the trade association for the UK dairy industry, applied to invalidate it on the basis that the aforementioned Regulation forbade the use of dairy terms including “milk” in relation to the marketing of products that are not milk. Dairy UK won at the UKIPO, lost on appeal to the High Court, then won again in the Court of Appeal. The Supreme Court upheld Dairy UK’s win.

I couldn’t help but think of this classic Simpsons scene.

The outcome turned on two points: (1) the meaning of “designation” in the Regulation (ie, was Oatly’s use as a slogan a “designation”); and, if it was, (2) could it rely on a proviso in the Regulation that permitted designations to be used that “are clearly used to describe a characteristic quality of the product” (Oatly arguing that it used the term to explain that its products were milk-free).

Oatly lost on the first point because the Supreme Court held that the meaning of “designation” was not limited to just the name of a product, but enjoyed a broader meaning and covered other use in respect of a food or drink. It also lost on the proviso point, the Supreme Court concluding that it was “far from clear” that POST MILK GENERATION describes any characteristic of the contested products, rather than describing the target consumers. If it were doing this, it did not do it clearly.

IPKat here.

10. How do the IPEC cost caps work when a case transfers to the High Court?

Salts Healthcare Limited v Pelican Healthcare Limited [2026] EWCA Civ 93 (February 2026)

Here’s a Retromark first: a Court of Appeal decision on a patent case. But don’t worry, I’m not going off script – Arnold LJ concluded in the costs part of his judgment that “the same analysis applies to transfers of copyright and trade mark claims from IPEC to the High Court”.

IPEC cases are subject to a strict costs cap. I dare say that costs cap is the primary reason to litigate in the IPEC rather than the High Court, because if you lose in a liability trial you know the most you’ll be ordered to pay is £60,000, and probably a fair bit less. But what happens if a case starts in IPEC, but is then transferred up to the High Court – perhaps because it is too complex to stay in the IPEC?

The costs cap functions as scale costs, with caps on the amount to be awarded for each stage of the proceedings set out in CPR 46.20 and CPR PD26. Arnold LJ noted that Rule 46.20 did not provide a clear answer for what happens to pre-transfer costs after transfer. He then endorsed a statement from a 2011 case by HHJ Birss QC (as he then was) that departing from scale costs should be limited to all but the more rare and exceptional cases, hinting that perhaps there should never even be exceptional departures. He then concluded that “the key to the present issue is provided by paragraph 9.2(1) of Practice Direction 30”, which allows the IPEC to “set terms for” transfer, including that costs pre-transfer should be subject to IPEC limits regardless of what happens in the High Court. This was at the discretion of the judge making transfer; if that judge were not to make such a order, then the judge in the High Court would have discretion to determine costs with or without the IPEC limits.

So remember if you find yourself subject to transfer: consider asking the transferring judge to decide this point upfront.

***

Thanks to my colleagues Ray Lama and Emily Hufton for helping me collate this volume.

• Volume I – April 2016 to March 2017
• Volume II – March 2017 to September 2017
• Volume III – November 2017 to April 2018
• Volume IV – May 2018 to October 2018
• Volume V – November 2018 to March 2019
• Volume VI – April 2019 to October 2019
• Volume VII – October 2019 to April 2020
• Volume VIII – April 2020 to October 2020
• Volume IX – November 2020 to May 2021
• Volume X – April 2021 to December 2021
• Volume XI – January 2022 to June 2022
• Volume XII – July 2022 to February 2023
• Volume XIII – February 2023 to November 2023
• Volume XIV – December 2023 to July 2024
• Volume XV – August 2024 to February 2025
• Volume XVI – March 2025 to July 2025

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