Issue-Specific “Costs in the Cause” for Split-Success Interlocutory Injunctions Involving Distinct Termination Grounds

1. Introduction

In Piramal Critical Care B.V. v Brepco Biopharma Limited [2026] IEHC 523, the High Court (Commercial List), in an ex tempore costs ruling delivered by Ms. Justice Eileen Roberts following a substantive interlocutory injunction judgment, addressed how to dispose of costs where two separate injunction applications—though heard together—produced a genuinely split outcome.

The dispute arose from attempted termination of contractual arrangements (including a Licence Agreement and a Supply Agreement) by two notices grounded on distinct contractual bases:

• The March Notice: alleged entitlement to terminate for failure to launch the product in certain countries within a contractual timeframe.
• The April Notice: alleged entitlement to terminate for insolvency (as defined by the Licence Agreement) across all countries.

In the substantive interlocutory ruling, the court refused injunctive relief regarding the March Notice (and discharged interim relief), but granted injunctive relief regarding the April Notice (for Germany, the UK, and Italy). The immediate question then became: what costs order is “just” at interlocutory stage, given the changed post-2008 framework requiring courts generally to determine interlocutory costs.

2. Summary of the Judgment (Costs Decision)

The court rejected both (a) a straightforward “no order” approach as the final answer and (b) an undifferentiated “costs in the cause of the entire proceedings”. Instead, it made a tailored order:

• March Notice costs: costs of the interlocutory application relating to termination under clause 14.2 shall abide the determination at trial of the validity of that termination.
• April Notice costs: costs of the interlocutory application relating to termination under clause 14.7.2 shall abide the determination at trial of the validity of that termination.

In short, where the interlocutory dispute comprises distinct, independently determinable issues (here, two termination grounds), the court ordered that interlocutory costs should track (“abide”) the ultimate success on each issue, rather than be tied to a single overall “winner” of the proceedings.

3. Analysis

3.1 Precedents Cited

(a) Yoplait Ireland Limited v Nutricia Ireland Limited [2025] IECA 210

The defendant relied on Yoplait Ireland Limited v Nutricia Ireland Limited as authority for the proposition that, where issues decided at interlocutory stage will be revisited at trial, it can be unjust to determine costs immediately, supporting an order such as “costs in the cause”.

The High Court in Yoplait had ordered costs “in the cause” on the interlocutory injunction, reflecting concern (noted by Mr Justice Barrett, para. 9) that it may be unfair to award costs to a party that later fails at trial to establish an essential limb of the test. On appeal, Ms Justice Hyland likewise considered it unjust to finally determine appeal costs where the issues would reappear at trial, and made costs “in the cause”.

How it influenced this case: Ms. Justice Roberts accepted the central practical point from Yoplait—that interlocutory findings are made on a necessarily incomplete evidential picture, and trial may significantly shift the merits. However, she treated Yoplait as illustrating the why behind reserving costs, not as mandating a one-size-fits-all “costs in the cause of the entire proceedings” approach where there are multiple independent issues.

(b) Thompson v Tennant [2020] IEHC 693

The plaintiff relied on Thompson v Tennant, emphasising Butler J.’s observation (para. 10) that the fact a trial court may later be in a better position to assess costs does not mean it is impossible for the interlocutory court to justly adjudicate costs at the interlocutory stage.

How it influenced this case: The court treated Thompson as reinforcing the current rules’ default: the court should determine interlocutory costs unless it cannot do so justly. But the court also highlighted that “justice” is fact-sensitive; the existence of two intertwined interlocutory injunctions with split success made a conventional “winner/loser” costs assessment problematic.

3.2 Legal Reasoning

(a) The governing costs framework: Order 99 and the “must make an award” default

The court traced the shift from the traditional practice—often reserving interlocutory costs to the trial judge—to the post-2008 rules now reflected in Order 99, rules 2(1) and 2(3). In particular, Order 99, rule 2(3) provides that upon determining any interlocutory application the court shall make an award of costs save where it is not possible justly to adjudicate liability on the interlocutory application. The court also noted the relevance of statute, including sections 168 and 169 of the Legal Services Regulation Act 2015.

Critically, the court observed there is no special carve-out for interlocutory injunctions, although injunctions may possess features that make just cost adjudication harder in a particular case.

(b) Why “no order” and “costs in the cause (overall)” were both unsatisfactory

The court initially expressed a provisional view that there should be no order as to costs, reflecting the split success. But it recognised a structural concern: a “no order” may foreclose later costs recovery by a party that was unsuccessful at interlocutory stage but ultimately vindicated at trial on the termination issue.

The defendant proposed “costs in the cause of the entire proceedings”, arguing that the trial judge would have more evidence (especially on the contractual “insolvency” threshold) and that costs should follow ultimate merits. The court accepted the trial would indeed have more evidence.

However, the court identified a decisive difficulty: the “cause” of the proceedings was not a binary single-issue contest. Two independent termination grounds were being litigated; each could succeed or fail irrespective of the other. A single “overall” costs-in-the-cause order risked producing an unjust outcome where:

• one party wins on the March Notice issue but loses on the April Notice issue (or vice versa); and
• yet costs consequences would be bundled into a single overall “winner” label.

(c) The court’s solution: allocate interlocutory costs by reference to the termination issue they relate to

The court’s reasoning turned on case-specific features it enumerated (including: two separate injunctions; split success; inability at this point to allocate costs between the injunctions because they were pleaded and run together; and the likelihood that the trial judge will determine each termination basis on its own merits).

To reconcile the Order 99 imperative (determine costs now where possible and just) with the reality of split-success, the court crafted an issue-specific reservation mechanism: each interlocutory costs determination is reserved, but only to the extent it is tied to the particular termination issue that generated that part of the interlocutory application.

This approach is noteworthy because it:

• avoids treating the litigation as having a single “cause” when it is in substance a bundle of distinct contractual termination controversies; and
• preserves the possibility that the party ultimately correct on a given termination issue can recover the costs associated with having been right (or wrongly restrained) on that specific issue.

3.3 Impact

The decision provides a practical template for costs management in complex commercial disputes where:

• multiple interlocutory injunctions are heard together;
• success is split; and
• the merits depend on discrete issues likely to be finally resolved only at trial.

Its likely influence is twofold:

1. More granular interlocutory costs orders: parties and courts may increasingly frame costs submissions and orders around issue-based outcomes (e.g., each termination ground, each separable head of claim, or each discrete defence), rather than pressing for a single “overall” costs order at interlocutory stage.
2. Strategic pleading and case management: where parties run multiple injunction grounds together, the judgment highlights that doing so can complicate costs allocation. Parties may respond by (a) seeking clearer segmentation in submissions and time records, or (b) accepting that the court may reserve costs by issue if segmentation is not feasible at the interlocutory stage.

The ruling also underscores that, even within the Order 99 “award of costs” default, the court’s discretion can be exercised to produce a fair, trial-aligned allocation where “justice” cannot be captured by a single immediate winner/loser designation.

4. Complex Concepts Simplified

“Costs in the cause”

A costs order that postpones who pays the costs until the court knows who ultimately wins the relevant “cause” (usually at trial). Here, the court refined this: costs would follow the result on each termination issue, not necessarily the case overall.

“Interlocutory” (injunction/application)

A temporary order or decision made before the final trial, often based on incomplete evidence, intended to preserve the position pending full determination.

Order 99, rule 2(3) “shall make an award of costs”

The default rule that the court deciding an interlocutory application should make a costs decision then and there—unless it cannot do so justly on the basis of the interlocutory application.

Split success

A situation where each party wins something and loses something (here: one injunction refused; another granted). This complicates identifying any single “successful party” for costs purposes.

5. Conclusion

Piramal Critical Care B.V. v Brepco Biopharma Limited [2026] IEHC 523 develops an important, pragmatic costs approach for multi-issue interlocutory injunction disputes: where injunctions are grounded on distinct and independently determinable contractual issues, and interlocutory success is genuinely split, it may be fairest to direct that each set of interlocutory costs “abide” the trial outcome on the specific issue to which it relates, rather than making a single costs order tied to the proceedings as a whole.