Kerry Underwood

COSTS OF APPLICATIONS FOR INTERIM INJUNCTIONS

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

Immediate Costs Award In Failed Application For Interim Injunction

In

Neurim Pharmaceuticals (1991) Ltd and another v Generics UK Ltd and another [2020] EWHC 1468 (Pat)

the Patents Court held that the costs of an application for an interim injunction, refused because damages were an adequate remedy, should be decided immediately and not reserved to the trial judge.

The court thus distinguished the approach in such cases as compared with the approach to costs where the application for an interim injunction is granted, based on the balance of convenience as per the very recent case of –

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

– see below.

The general situation in such cases is that, absent any special factor, the court normally reserves costs until after trial, although this is not an absolute rule, and indeed in that case did make an immediate costs order.

Broadly, where an interim injunction is granted, it is not correct to say that the defendant is the unsuccessful party, or that the claimant is the successful party as the idea of an interlocutory injunction is simply to “hold the ring” until trial when the dispute between the parties can properly be decided.

The position is different when an interim injunction is refused, as that does effectively mean a defeat for the claimant on that point.

Thus, generally, a claimant who loses an application for an interlocutory injunction can expect to have an immediate award of costs against it, but a claimant who succeeds on an interlocutory injunction is generally likely to find costs reserved until after the trial.

 

Interim Injunctions Decided On Balance Of Convenience

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

June 15, 2020 at 7:41 am

Posted in Uncategorized

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