ORDER OF THE COURT OF FIRST INSTANCE (Fifth Chamber)
25 January 2007 (*)
(Taxation of costs)
In Case T‑214/04 DEP
The Royal County of Berkshire Polo Club Ltd, established in Winkfield, Windsor, Berkshire (United Kingdom), represented by J. Maitland-Walker, Solicitor,
applicant,
v
Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), represented by P. Bullock, acting as Agent,
defendant,
the other party to the proceedings before the Board of Appeal of OHIM, intervener before the Court of First Instance, being
The Polo/Lauren Co. LP, established in New York, New York (United States), represented by P. Taylor, Solicitor,
APPLICATION for taxation of the costs pursuant to the judgment of the Court of 21 February 2006 in Case T-214/04 Royal County of Berkshire Polo Club v OHIM – Polo/Lauren (ROYAL COUNTY OF BERKSHIRE POLO CLUB) [2006] ECR II-239,
THE COURT OF FIRST INSTANCE
OF THE EUROPEAN COMMUNITIES (Fifth Chamber),
composed of M. Vilaras, President, M.E. Martins Ribeiro and K. Jürimäe, Judges,
Registrar: E. Coulon,
makes the following
Order
Facts, procedure and forms of order sought
1 By application lodged at the Court Registry on 3 June 2004, the applicant brought an action against the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 25 March 2004 (Case R 273/2002-1) relating to opposition proceedings between The Polo/Lauren Co. LP and the Royal County of Berkshire Polo Club Ltd.
2 The intervener, The Polo/Lauren Co. LP, intervened in the proceedings, requesting the Court, first, on the basis of Article 134(3) of the Rules of Procedure of the Court of First Instance, to alter the decision of the Board of Appeal in so far as the latter had rejected the opposition regarding bleaching preparations and other substances for laundry use, and polishing, scouring and abrasive preparations and, second, to uphold the decision of the Board of Appeal as to the remainder.
3 By judgment of 21 February 2006 in Case T-214/04 Royal County of Berkshire PoloClub v OHIM – Polo/Lauren (ROYAL COUNTY OF BERKSHIRE POLO CLUB) [2006] ECR II-239, the Court, first, dismissed the applicant’s action and, second, upheld the intervener’s application based on Article 134(3) of the Rules of Procedure. The Court thus ordered the applicant, on the basis of Article 87(2) of the Rules of Procedure, to pay the costs incurred by OHIM and the intervener.
4 By application lodged at the Court Registry on 27 July 2006, the intervener brought an application for taxation of costs in which it requested the Court, in accordance with Article 92 of the Rules of Procedure, to fix the total amount of recoverable costs incurred in Case T-214/04 at GBP 17 669, and to order the applicant to pay that amount to it.
5 By document lodged at the Court Registry on 16 August 2006, the applicant asked the Court to dismiss the intervener’s requests and to fix the costs at an amount not exceeding GBP 6 450.
Law
Arguments of the parties
6 The intervener submits that the total amount of costs incurred by it in connection with the proceedings before the Court is GBP 17 669. That amount is made up of GBP 12 203 for solicitor’s fees and GBP 5 466 for barrister’s fees. The intervener takes the view that those fees are recoverable under Article 91(b) of the Rules of Procedure.
7 The intervener maintains that that amount is extremely reasonable having regard to the amount of work which needed to be carried out in connection with the proceedings. In that regard, the intervener refers to a letter of 13 September 2005, sent to it by the applicant before the hearing on 15 September 2005, in which the total costs incurred by the applicant in respect of the proceedings was estimated to be GBP 16 227.84. The intervener points out that the fact that the costs incurred by the applicant before the Court are slightly lower than its own is explained by the fact that the applicant instructed a firm of solicitors based in the provinces whose fees are inevitably lower than those of a firm based in London. The intervener takes the view that it was perfectly reasonable to choose a firm based in London because the proceedings concern a specialised matter, namely European law. Moreover, the intervener’s choice is further justified because the London firm of solicitors instructed is very familiar with the issues, having always acted for the intervener in all the proceedings between the applicant and the intervener in the United Kingdom.
8 Next, the intervener submits that the Court could have given a ruling solely on the basis of the parties’ written submissions. It observes, in that regard, that the applicant specifically requested an oral hearing by a letter of 12 November 2004 sent to the Court Registry. Therefore, the costs incurred by the intervener in connection with the proceedings were substantially increased, first, on account of the solicitors’ fees related to instructing the barrister, discussing with him the various issues which arose and ensuring that he was fully briefed for the hearing and, second, on account of the barrister’s fees and expenses for the preparation of the hearing, travel and appearance in court, including hotel and travel costs. The intervener considers that those fees and expenses, which amounted respectively to GBP 2 997 and GBP 5 466, would not have been incurred if the applicant had not insisted on an oral hearing.
9 The applicant replies that, although in its letter of 13 September 2005 it claimed the amount of GBP 16 227.84, some of those costs would not have been recovered and, above all, those costs concerned the whole of the proceedings and not only the costs related to the action before the Court.
10 Finally, the applicant submits that the amount of the costs claimed by the intervener does not reflect the fact that, on account of the various proceedings initiated in the United Kingdom, the firm of solicitors was very familiar with the issues.
11 The applicant observes, furthermore, that, in its summary of fees and expenses, the intervener does not give a breakdown of hourly rates and the time spent on each item. In the applicant’s view, the figures set out there are extraordinarily high. That is the case, in particular, for the response, given that it is a relatively short document consisting in a restatement of the arguments set out previously. Moreover, as far as concerns the amount of GBP 1 396, claimed in respect of correspondence with the Court, the applicant states that it is not aware of any voluminous correspondence between the intervener and the Court which might justify that amount.
12 Finally, the applicant submits that the firm of solicitors chosen by the intervener has offices in Luxembourg and did not therefore need to instruct English counsel who would have had to travel on the day before the hearing, when a person from the local office could easily have attended the hearing.
Findings of the Court
13 According to Article 91(b) of the Rules of Procedure ‘expenses necessarily incurred by the parties for the purpose of the proceedings, in particular the travel and subsistence expenses and the remuneration of agents, advisers or lawyers’ are regarded as recoverable costs. It follows from that provision that the recoverable costs are limited, first, to those incurred for the purpose of the proceedings before the Court of First Instance and, second, to those which are necessary for that purpose (Orders in Case T-38/95 DEP GroupeOrigny v Commission [2002] ECR II-217, paragraph 28; Case T-342/99 DEP Airtours v Commission [2004] ECR II-1785, paragraph 13; and of 28 September 2006 in Case T-19/02 DEP Albrecht and Others v Commission and EMEA (not published in the ECR, paragraph 28).
14 It is settled case-law that, in the absence of Community provisions laying down fee-scales, the Court must make an unfettered assessment of the facts of the case, taking into account the purpose and nature of the proceedings, their significance from the point of view of Community law as well as the difficulties presented by the case, the amount of work generated by the proceedings for the agents and advisers involved and the financial interests which the parties had in the proceedings (Orders in Airtours v Commission, paragraph 13 above, paragraph 18, and Albrecht and Others v Commission and EMEA, paragraph 13 above, paragraph 29; see also, by analogy, the Order of the President of the Third Chamber of the Court of Justice in Case 318/82 DEP Leeuwarder Papierwarenfabriek v Commission [1985] ECR 3727, paragraph 3).
15 It is on the basis of those factors that the amount of the recoverable costs must be determined.
16 First, the Court finds that the case in the main proceedings did not have any unusual significance for Community law and did not raise any new legal issues. In addition, the case in the main proceedings was not, as regards its purpose and nature, of any particular complexity. As regards the financial interest of the case for the intervener, the latter has not established that it is unusually high.
17 Second, as regards the amount of the work generated by the proceedings for the intervener’s advisers, it should be observed, first of all, that the applicant’s letter of 13 September 2005, in which it estimated its own fees and expenses, does not in itself constitute a decisive factor in the calculation of the recoverable costs.
18 Furthermore, it should be recalled that the ability of the Court to assess the value of work carried out is dependent on the accuracy of the information provided (see Order in Airtours v Commission, paragraph 13 above, paragraph 30 and the case-law cited). It must be observed, as the applicant has done (see paragraph 11 above), that no breakdown has been given of hourly rates and the time spent on each item in the summary of fees and expenses that the intervener produced in its application for taxation of costs. The lack of more detailed information on hourly rates and the time spent on each item makes it especially difficult to verify precisely the costs incurred for the purpose of the proceedings before the Court and those which were necessary for that purpose, and requires the Court to apply a strict test when assessing the fees recoverable in this case (Order of 30 November 2004 in Case T-76/02 DEP Messina v Commission, not published in the ECR).
19 As far as concerns, more particularly, the amount of GBP 1 396 claimed by the intervener for correspondence with the Court, it should be observed that the intervener does not put forward any evidence capable of justifying the amount of that sum. Nor is such evidence apparent from the correspondence between the intervener and the Court Registry, as it appears in the case file.
20 Next, it should be noted that, according to the information provided by the intervener itself, the firm of solicitors it instructed in the main proceedings has become very familiar with the issues in this case because it has always acted for the intervener in the various proceedings between it and the applicant in the United Kingdom. In the Court’s view, that familiarity must inevitably have a moderating effect on the number of hours necessary to prepare the defence of the intervener’s interests (see, to that effect, Order of 19 April 2004 in Case T-321/01 DEP Internationaler Hilfsfonds v Commission, not published in the ECR, paragraph 29).
21 Finally, as regards the choice by the intervener to be represented in this case by both a barrister and a solicitor, it must be observed, first of all, that in a number of common-law jurisdictions, including that of England and Wales, it is a feature of the legal profession that it is split into two branches, solicitors, on the one hand, and counsel, on the other, between which there existed until recent times a division of complementary but distinct functions. The solicitor acted as his client’s adviser in many areas of the law; he did not have the right to appear before the higher courts but, where necessary, engaged the services of counsel for that purpose. Barristers specialised in the oral pleading of cases and could not be engaged directly by the client (Order in Airtours v Commission, paragraph 13 above, paragraph 42).
22 As regards cases before the Community Courts, the relevant professional rules have been amended, so that there now exists no legal or deontological obstacle to a party being represented solely by either a solicitor or a barrister of England and Wales for the purpose of both the written and the oral procedure. However, it does not follow that where a client decides to be represented by both a solicitor and counsel, the fees due to each of them are not to be regarded as costs necessarily incurred for the purpose of the proceedings, as provided for in Article 91(b) of the Rules of Procedure (Order in Airtours v Commission, paragraph 13 above, paragraph 43).
23 In taxing costs in those circumstances, the Court must examine the extent to which the services supplied by all the advisers concerned were necessary for the conduct of the legal proceedings and satisfy itself that the fact that both categories of lawyers were instructed did not entail any unnecessary duplication of costs (Order in Airtours v Commission, paragraph 13 above, paragraph 44).
24 In this case the Court finds, first of all, that the amount of GBP 2 997 claimed by the intervener in respect of fees and expenses for instruction of the barrister by the solicitor and for correspondence between the two lawyers cannot be regarded, at least partially, as costs necessarily incurred for the purpose of the proceedings.
25 Second, as regards the amount of GBP 5 466 claimed in respect of the barrister’s involvement, it should be observed that that amount is payable by the party ordered to pay the costs only to the extent that it corresponds to the time spent by the barrister on the case. However, in order to avoid an unnecessary duplication of costs, that time cannot include the time necessarily required to become familiar with the case.
26 In the light of all the foregoing considerations, the Court considers that a fair assessment of all the costs recoverable by the intervener will be made by fixing them at GBP 10 000, a sum which takes account of all the circumstances of the case up to the date of this order.
On those grounds,
THE COURT OF FIRST INSTANCE (Fifth Chamber)
hereby orders:
The total amount of the costs to be paid by The Royal County of Berkshire Polo Club Ltd is fixed at GBP 10 000.
Luxembourg, 25 January 2007