15. The Defendants' third argument was that even if an account of profits is a non money claim, the claim includes a money claim (damages) as an alternative, so that fee 1.1 is payable. I agree with Hildyard J that the Fees Order is not easy to construe, and the logic operating in the distinctions contained in it can be difficult to discern. I also agree with the claimant's counsel that it would be anomalous if a claimant with sufficiently early information about the defendant's activities to enable it to elect for an account of profits in its claim form could pay only the fee 1.5, but a defendant without that information must pay the higher fee. Further, the two forms of relief are not mere alternatives, but are mutually exclusive; and it is not until a claimant elects for an inquiry (which it may not do) that it can be said that its claim is to recover money
16. If, therefore, this claim had been only for trade mark infringement, then I would have held that the appropriate fee had been paid.