Lucas Bateman on the need for a reform of attitudes.

Lucas Bateman is an intellectual property litigator at Pinsent Curtis in Leeds.

In an era of concern over the time and money consumed by litigation, I anticipate that the recent trend towards the granting of orders for lump sum costs in the Chancery Division will be welcomed by most practitioners.

In a Patents Court Practice Explanation, 1 All ER 383 (1997), the patents judges have all but invited applications for immediate assessment by the trial judge, particularly where the delays caused by taxation are likely to lead to injustice.

A recent case, Rosehill Polymers v Chambers, Moulds & ors, shows that this view has not yet achieved general acceptance and that certain courts may still be prepared to cause substantial injustice to the successful party in order to keep to the usual taxation route.

The plaintiff in Rosehill had spent well over £200,000 during the two years it took to uncover the activities of two ex-directors and bring to trial an action against them for breaches of duty, design right and confidentiality.

By the end of the trial, the defendants' business was in receivership and their only substantial assets were the pension fund and residential property of the first defendant.

The plaintiff applied for an order for approximately two- thirds of the costs it had incurred and waived privilege on all of its bills and associated documents, putting them before the court.

The defendants freely admitted that they would not be able to raise the taxed costs suggested by the plaintiff's figures, and it was clear that any money they spent on taxation would effectively be the plaintiff's.

In his ex tempore judgment Mr Justice Carnwath dismissed the comments of the judges in the Patents Court, saying that they were "somewhat avant garde".

He went on to say that, notwithstanding the likely injustice to the plaintiff, he felt that he could not deprive the defendants of their right to have the bill taxed.

The defendants are unlikely to obtain a reduction greater than that offered in the original hearing and have effectively been given only a few months stay of execution before they face an even larger debt than would otherwise be the case.

Perhaps this bizarre result is a demonstration that the reforms most desperately needed are not reforms of the legal system itself, but changes in the attitude to innovation and flexibility of those who administer and work within it.