Kerry Underwood

COSTS OF APPLICATIONS FOR INTERIM INJUNCTION DECIDED ON BALANCE OF CONVENIENCE

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These principles, and the whole issue of Qualified One-Way Costs Shifting, is dealt with in my book – Qualified One-Way Costs Shifting, Section 57 and Set-Off – Available from me here for £15.

Kerry Underwood offers consultancy services in relation to this and other matters and details are here.

In

Koza Ltd and another v Koza Altin Isletmeleri AS [2020] EWHC 1092 (Ch) (12 May 2020)

the Chancery Division of the High Court considered the question of costs on successful applications for interim injunctions where the balance of convenience was a decisive factor.

In

Picnic at Ascot Inc v Derigs [2001] FSR 2,

the court stated that, in a case without any other special factors, where an applicant obtains an interlocutory injunction on the basis of the balance of convenience, the court normally reserves costs until after trial but in the Picnic case, the court was not laying down a hard and fast rule on how costs should be dealt with on applications for interlocutory injunctions where the balance of convenience was a decisive factor.

The logic of this practice is that, at this stage, there is no winner or loser.

There was no rule against awarding costs on such applications.

The present case was so significantly against the claimants on the balance of convenience that it was not within the general approach described by the court and it would be wrong to treat it as such and it would also be wrong to put off dealing with the matter of costs and, having heard the injunction application, the judge was best placed to ascertain whether the claimants really were justified in resisting the application.

The court here also ruled that there was no invariable rule that, when parties make common cause, running the same arguments, a costs order should be on a joint and several basis.

The costs order here was made against only one of two claimants as he was the “the real master of the litigation” on the claimants’ side.

An order against the other claimant might also have interfered with the purpose of the injunction.

The court held that it may not be possible to set off costs when different parties are involved and clear distinctions can be drawn.

The party facing the costs order here was not entitled to take advantage of a previous costs award that only his fellow claimant had obtained.

Written by kerryunderwood

May 18, 2020 at 7:41 am

Posted in Uncategorized

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