Piramal Critical Care B.V. v Brepco Biopharma Ltd (Approved)

Factual and Procedural Background

This ex tempore judgment on costs followed the Court’s substantive judgment of 14 July 2026. The Court had refused injunctive relief to the Plaintiff in relation to the March Notice and discharged the interim relief, but had granted injunctive relief to the Plaintiff in relation to the April Notice in respect of Germany, the UK, and Italy. The March Notice sought to terminate the parties’ contractual arrangements for alleged failure to launch the product within a contractual time limit, while the April Notice sought to terminate those arrangements for all countries on the basis of the Defendant’s alleged insolvency. [Para 13][Para 14][Para 15][Para 16][Para 1][Para 2]

On costs, the Court provisionally considered that no order should be made because each party had been both successful and unsuccessful across the injunction applications, and it invited oral submissions before finalising that position. The parties made submissions on 20 July 2026. [Para 19][Para 20][Para 21]

Legal Issues Presented

1. What costs order should be made following two interlocutory injunction applications that were heard together, where each party succeeded on one injunction and failed on the other? [Para 19][Para 20][Para 45][Para 47]
2. Should costs be dealt with immediately at interlocutory stage, reserved to the trial judge, or made costs in the cause of the entire proceedings or of each termination issue separately? [Para 25][Para 28][Para 31][Para 53][Para 55]

Arguments of the Parties

Plaintiff's Arguments

• The Plaintiff agreed with the Court’s provisional view that there should be no order as to costs. [Para 22]
• The Plaintiff argued that the normal rule of determining costs at interlocutory stage should apply, and that neither party should recover costs because each won and lost on different interlocutory motions. [Para 41]
• The Plaintiff also submitted that the undertaking as to damages protected a party wrongly injuncted, and that costs remained a separate matter. [Para 41]
• The Plaintiff relied on Thompson v Tennant [2020] IEHC 693, particularly the proposition that the fact a trial court may later be better placed to assess costs does not mean the interlocutory court cannot justly adjudicate them. [Para 41][Para 42]

Defendant's Arguments

• The Defendant urged that costs be made costs in the cause of the entire proceedings. [Para 23]
• The Defendant argued that the trial judge would have significantly more evidence on whether the Plaintiff was insolvent within the meaning of the Licence Agreement, and therefore on whether termination rights had properly arisen. [Para 23]
• The Defendant relied on Yoplait Ireland Limited v Nutricia Ireland Limited [2025] IECA 210, where costs were treated as inappropriate to determine at interlocutory stage because the issues would reappear at trial. [Para 33][Para 34][Para 37]

Table of Precedents Cited

Court's Reasoning and Analysis

The Court began from the modern rule under Order 99, rules 2(1) and 2(3), which generally requires an award of costs when an interlocutory application is determined, subject to the exception where it is not possible justly to adjudicate liability for costs at that stage. The Court noted that there is no special carve-out for interlocutory injunctions, although such applications may present difficulties because the trial judge may later have a different evidential picture. [Para 28][Para 29][Para 30][Para 31][Para 32]

The Court then considered the competing submissions. It accepted that the Defendant was right that the trial judge would have more evidence on insolvency, but it also accepted the Plaintiff’s point that interlocutory costs can ordinarily be decided at the time the application is heard. [Para 23][Para 37][Para 40][Para 42]

The decisive feature was that there were two separate injunctions, each party succeeded on one and failed on the other, and the applications were pleaded and heard together so that costs could not sensibly be allocated between them on the existing record. The Court also recognised that the trial would determine two distinct and independent questions—insolvency and failure to launch—and that success on the overall proceedings was not binary. [Para 45][Para 46][Para 47][Para 48][Para 49][Para 50][Para 51][Para 52][Para 53]

Against that background, the Court rejected a single global order of costs in the cause of the entire proceedings. Instead, it held that the proper course was to make the costs of each interlocutory injunction application abide the outcome at trial of the specific termination issue to which that application related. [Para 53][Para 55]

Holding and Implications

The costs of the March Notice injunction application shall abide the trial determination of the validity of the termination under clause 14.2 of the Licence Agreement, and the costs of the April Notice injunction application shall abide the trial determination of the validity of the termination under clause 14.7.2. [Para 56][Para 57]

Liberty to apply was granted. The immediate effect is that no party received a final, global costs order now; costs are deferred and tied separately to the eventual trial outcomes on each termination issue. [Para 58][Para 56][Para 57]