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The High Court considered a costs application following its earlier grant of an interlocutory injunction in passing off proceedings between two companies in the food sector. The court ordered that the plaintiff’s costs for the interlocutory application and the present costs application should be treated as ‘costs in the cause’, meaning a determination on these costs will await the final trial outcome. The defendant was not awarded any costs. The court reasoned that success at the interlocutory stage, based only on a threshold showing of an arguable case, does not equate to success on the merits, and an immediate costs order might unjustly penalise the defendant given that crucial issues will be determined at trial based on fuller evidence.
costs in the cause – interlocutory injunction – passing off – injunction application – threshold for interlocutory relief – undertaking as to damages – principles governing costs – Rules of the Superior Courts (RSC) – survey evidence – future determination at trial
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