Background
The costs judgment followed the court’s substantive ruling on two interlocutory injunction applications concerning separate notices that purported to terminate contractual arrangements between Piramal Critical Care B.V. and Brepco Biopharma Limited. The March Notice relied on an alleged failure to launch the relevant product in certain countries within the contractual time limit. The April Notice sought termination for all countries based on Brepco’s alleged insolvency.
The court had refused Piramal an injunction concerning the March Notice and discharged the related interim relief. It had granted Piramal an injunction concerning the April Notice for Germany, the United Kingdom and Italy. Because each party had succeeded on one application and failed on the other, the court provisionally proposed making no order as to costs. Piramal supported that approach, while Brepco argued that the costs should be costs in the cause of the proceedings.
The Court’s Holding
Ms. Justice Eileen Roberts declined both the proposed no-order approach and Brepco’s request to make all interlocutory costs costs in the cause of the proceedings as a whole. Under Order 99, the court should determine costs when deciding an interlocutory application unless it cannot justly do so. Here, however, treating the litigation as a single cause would not fairly reflect the two distinct termination issues, each of which could be decided differently at trial.
The court instead directed that the costs attributable to each injunction application should abide the trial outcome of its corresponding termination issue. The costs concerning the March Notice under clause 14.2 of the Licence Agreement will follow the trial determination of that termination’s validity. The costs concerning the April Notice under clause 14.7.2 will likewise follow the trial determination of the validity of that termination. The court also granted liberty to apply.
Key Takeaways
- Order 99 generally requires courts to address costs when determining interlocutory applications, unless liability for those costs cannot then be adjudicated justly.
- Where intertwined injunction applications concern separate substantive issues, a single costs-in-the-cause order may be inappropriate if success at trial will not necessarily be binary.
- The court may link each application’s costs to the eventual trial determination of the specific issue underlying that application.
Why It Matters
The ruling illustrates a tailored approach to costs where success on multiple interlocutory applications is divided and the underlying issues remain unresolved. Rather than treating the proceedings as producing one overall winner, the court preserved the connection between each injunction’s costs and the contractual termination issue that generated it.
For litigants pursuing or resisting injunctions based on multiple independent contractual grounds, the decision indicates that costs may ultimately turn on success regarding each ground individually, even when the applications were pleaded, evidenced and heard together.