Costs of interlocutory appeal to be determined after trial with recovery capped at 80% for prevailing party

The Court of Appeal considered the appropriate order for costs following its earlier decision upholding the grant of an interlocutory injunction restraining a dairy products company from passing off its yoghurt products as those of a competitor. The High Court had previously ordered that costs relating to the injunction should be 'costs in the cause', meaning the issue of costs would be determined after the full trial. The Court of Appeal agreed that, due to the provisional nature of interlocutory applications and the fact that the main issues would be revisited at trial, it would be unjust to order costs at this stage. The court directed that the costs of the appeal should also be 'costs in the cause', and further held that if the plaintiff ultimately wins at trial, its recovery of costs for this appeal will be capped at 80%, reflecting the defendant’s partial, although limited, success on the variation of the form of order.