Case Preview: Cartier International AG v British Telecommunications plc, Supreme Court to consider ISPs and costs of blocking orders

On Tuesday 30 January 2018, the UK Supreme Court (Lords Mance, Kerr, Sumption, Reed and Hodge) will hear the appeal of Cartier International AG & Ors v British Telecommunications Plc & Anor. 

There are two issues on the appeal:

1. The threshold conditions for the imposition of an order requiring internet service providers (“ISPs”) to block or attempt to block access to websites infringing registered trademarks;
2. Whether ISPs, as innocent parties, should be required to bear the costs of such blocking orders.

Arnold J at first instance ([2014] EWHC 3354 (Ch) held that blocking injunctions were available in trademark cases as a result of its “unlimited” jurisdiction to grant injunctions under section 37 of the Senior Courts Act 1981 (see our post here).

In lines with his own judgment in Newzbin 2 ([2012] 1 All ER 806),  the judge took the view that

“the rightholders should pay the costs of an unopposed application … [and] the ISPs should generally bear the costs of implementation as part of the costs of carrying on business in this sector”  [240]

The Court of Appeal dismissed the ISPs’ appeal against this decision ([2016] EWCA Civ 658)(see our post here).  However, Briggs LJ dissented on the question of costs.  He held that the cost burden attributable to the implementation of a particular blocking order should fall upon the rightsholder making the application for it [198] to [212].

The issues relating to costs will now be considered by the Supreme Court.

The Internet Service Providers’ Association (ISPA) was refused permission to intervene in the appeal but the Supreme Court has granted permission to intervene to the mobile network operators, BPI, The Open Rights Group and The Motion Picture Association.