Shenzhen Ske Technology Co Ltd v Bargain Busting Limited

This judgment was handed down at 10.00 am on 28 November 2025 by circulation to the parties’ representatives by email. The Deputy Judge:

1. On 1 July 2025 I handed down judgment on the appeal by the Appellant (“SKE”) against the decision of Ms Judi Pike, a Hearing Officer acting on behalf of the Registrar of Trade Marks, in which she rejected SKE’s opposition to trade mark application no. 3786148 (“the Application”) which was, by the time of my judgment, in the name of the Respondent (“BB”). For the reasons explained in my judgment ( [2025] EWHC 1629 (Ch) ) I held that SKE’s appeal must be dismissed.

2. On 4 July 2025 I made an order dismissing SKE’s appeal. Paragraph 2 of my order stated that the Application “shall proceed to registration”. SKE had indicated that it intended to seek permission to appeal (which would be a second appeal) and my order stated that any such application should be lodged by 25 July 2025. Such an application was duly lodged with the Court of Appeal on that date. However, no stay of paragraph 2 of my order had been sought by SKE, nor was a stay of execution sought from the Court of Appeal.

3. Following my judgment, in mid July 2025 there was correspondence between the parties and the UKIPO regarding registration of the Application. SKE took the position that the Application should not be registered until its routes of appeal were exhausted. BB took the position that the Registrar was obliged to register the Application forthwith. That led SKE to make an application on 29 July 2025 to vary my order to include a stay of paragraph 2 pending appeal (“the Variation application”).

4. In August 2025 BB took the unusual step of issuing proceedings for criminal contempt of court against SKE, the firm of solicitors it was instructing (Stobbs) and two individual solicitors at Stobbs. BB alleged that SKE’s actions in seeking to delay the registration of the Application by the Registrar amounted to wilful interference with the administration of justice. BB’s solicitors (Brandsmiths) even threatened the UKIPO and any individuals involved in the decision with proceedings for contempt of court if they did not register the Application. More information about the correspondence between the parties and the UKIPO can be found in the decision of Dr JE Porter, a Hearing Officer acting for the Registrar (BL O/0856/25). As I understand that the proceedings for contempt are still live, I shall refrain from commenting on these matters.

5. On 12 September 2025 a hearing took place before Dr Porter, and he issued his decision referred to above on 18 September 2025. Dr Porter concluded that, despite SKE’s pending applications to vary my order and for permission to appeal, the Registrar should proceed to register the Application as soon as administratively possible. It was registered on 19 September 2025.

6. Meanwhile SKE had issued further applications – on 26 August 2025 seeking an extension to the agreed timetable for submissions in relation to the Variation application (“the Extension application”) and on 8 September 2025 seeking a hearing on 12 September 2025 for directions listing the Variation application for an urgent hearing (“the Hearing application”). BB responded with an application issued on 11 September 2025 to vacate the hearing of the Hearing application, which had been listed for 16 September 2025 (“the Vacation application”).

7. On 15 September 2025 Joanna Smith J made an order vacating the hearing listed for 16 September 2025 and making directions for submissions on the Variation application. The Variation application, and the costs of the various applications, were reserved to me.

8. SKE lodged its written submissions on the Variation application on 19 September 2025 and BB lodged its submissions in response on 3 October 2025. On considering those submissions I formed the view that a hearing would be needed to determine the application. However, I was concerned that there was a risk of wasted costs and court resources if a hearing took place before the Court of Appeal had decided SKE’s application for permission to appeal. On 6 October 2025 I therefore invited the parties to make a joint approach to the Court of Appeal, asking it to consider the application for permission as soon as practicable. The parties were unable to agree on a joint letter, so BB wrote to the Court of Appeal unilaterally on 10 October 2025. On 13 October 2025 Arnold LJ refused permission to appeal.

9. Following the refusal of permission to appeal, SKE has withdrawn the Variation application. What remains is the issue of costs of the Variation application and the other applications. BB filed written submissions on 7 November 2025 and SKE’s responsive submissions were filed on 21 November 2025. BB says that SKE should pay its costs of the applications; SKE says that there should be no order as to costs.

10. I shall start by considering the costs of the Variation application.

11. SKE says that the court is not in a position to make an order about costs of the Variation application at all. It referred me to BCT Software v Brewer [2003] EWCA Civ 939 and in particular to what Chadwick LJ said at [22]-[23] about the need to have a proper basis of agreed or determined facts upon which to decide whether the case is one in which the general rule that costs should follow the event applies; otherwise the court is not in a position to make an order about costs at all.

12. BB referred me to Deepchand v Sooben [2020] EWCA Civ 1409 in which the Court of Appeal held that the court below should have concluded that the appellants were the winners and should have awarded them their costs. Many of the reasons given by Arnold LJ at [34]-[39] are specific to the facts of that case, but his first point was that the respondent had not achieved what he sought by his application and was therefore the unsuccessful party.

13. SKE says that the court is not in a position to judge whether the Variation application would have been successful if it had been determined. I accept that, and reject BB’s invitation to consider the submissions made about the merits of the application and decide which party would have prevailed. Nevertheless, in my judgment it is clear that SKE is the unsuccessful party for the purposes of the Variation application. It has withdrawn that application in the light of the refusal of permission to appeal, and so it has not achieved what it sought by that application. Therefore application of the general rule would mean that SKE should pay BB’s costs.

14. I have considered whether awarding costs against SKE would amount to penalising it for withdrawing (rather than pursuing) an application that might have succeeded. However, the application had become otiose and the course adopted by SKE always ran the risk of the Variation application being overtaken by events, such that it would become unnecessary to decide it.

15. It was clear from mid July 2025 that BB was taking the position that the Registrar was required by paragraph 2 of my order to register the Application forthwith. Yet SKE waited until 29 July 2025 to issue the Variation application, thereby depriving itself of the chance to get before the court before the end of term and indeed to bring the matter back before me before I went on vacation. SKE also failed to apply to the Court of Appeal for a stay of execution when filing its Appellant’s Notice, depriving itself of the chance to obtain a stay without the need to persuade the first instance court that it should vary a sealed final order.

16. SKE suggests that on the original timetable agreed between the parties the submissions on the Variation application would have been with the court by 9 September 2025 and so would have been likely to be determined before the Court of Appeal reached a decision on permission to appeal. I doubt that. If I had received the parties’ submissions on the Variation application sooner, it is quite likely that I would have taken the same course. SKE also suggests that if the submissions had been with me by 9 September 2025 the UKIPO would have waited for me to give judgment on the Variation application before registering the Application. However, I can see no basis for that suggestion in Dr Porter’s decision. SKE also suggests that BB (and in particular its decision to bring contempt proceedings) is to blame for matters being delayed. I do not think it is fruitful or necessary to get into such a debate because, for the reasons explained above, there is nothing to indicate that the outcome would have been different if SKE’s original proposed timetable had been maintained.

17. In my judgment, because SKE has not achieved what it sought by the Variation application and because, for the reasons I have explained, that was a risk that it ran by adopting the course that it did, it is properly to be regarded as the unsuccessful party and it is just that it should pay the costs of the Variation application.

18. SKE did not contend that, if I came to that conclusion, a different order should be made in relation to the costs of the other applications.

19. It is common ground that in such circumstances I should summarily assess BB’s costs. BB’s statements of costs in respect of the applications claim: (1) £63,012 in respect of the Variation application, (2) £1,879 in respect of the Extension application, (3) £10,914.50 in respect of the Hearing application and (4) £10,278 in respect of the Vacation application.

20. After SKE had filed its submissions on costs, BB submitted a further statement of its costs relating to the submissions on costs. That statement claims £13,828.50, making the total claimed £99,912. At my invitation SKE made brief submissions in response. SKE submitted that BB should not recover its costs of the costs submissions because BB had not indicated what its costs of the applications were and so, SKE said, it had been deprived of the chance to reach a pragmatic settlement. However, once it had received BB’s costs submissions and statements of its costs of the applications, SKE’s response was to resist BB’s claim to costs and file its own submissions. I can see no reason to deprive BB of the costs of the costs submissions.

21. I do not have any statements of costs from SKE to compare with those of BB, but I am told that SKE’s costs for the Hearing application and, it seems, the Vacation application were £27,194. But the fact that SKE’s costs were higher than those of BB for those applications does not mean that BB’s costs are reasonable and proportionate – see Athena Capital [2022] EWCA Civ 1061 .

22. BB says that the costs it incurred were proportionate because the parties are involved in broader litigation regarding rights to the CRYSTAL BAR mark and sales under that mark in the UK are very substantial. However, the point at issue in the Variation application was a limited one – whether there should be a stay of paragraph 2 of my order while SKE sought permission for a second appeal (for which there is a high bar).

23. In any event BB can only be awarded costs that were reasonably incurred. As with the costs claimed by BB for the appeal itself (as to which see my judgment on costs [2025] EWHC 1705 (Ch) ) BB claims hourly rates which are in excess of London band 1. As before, I do not regard this case as falling into London band 1, let alone as justifying fees above that rate. BB reminded me that in Pathway v EasyGroup [2018] EWHC 3608 (Ch) Henry Carr J said that trade mark litigation “can raise multiple legal issues of Byzantine complexity”. But that does not mean that this case did.

24. SKE informed me that if the hourly rates were reduced to London band 2 or National band 1 rates (as appropriate), but all the hours claimed were permitted, BB’s costs covered by its statements of costs would be about £67,000.

25. SKE also made some general observations about the level of costs claimed for the Hearing and Vacation applications, and about the number of hours spent by BB’s solicitors (about 135 on the applications, including about 84 on the Variation application, plus about 15 hours on the costs submissions). The only specific criticism was of the time spent on letters/emails out – about 27 hours, which SKE pointed out was the same amount of time claimed on the appeal itself, which I had regarded as excessive. However, it is easier to understand the time spent on correspondence associated with the applications than with the appeal itself. SKE did not make any specific criticism of counsels’ fees or any other aspect of the solicitors’ fees. Nevertheless, I agree that the total time spent by BB’s solicitors does appear to be rather higher than would be reasonable.

26. Doing the best I can with the material I have, I am going to summarily assess BB’s reasonable and proportionate costs in the sum of £55,000.