‘(4) In deciding what order (if any) to make about costs, the court will have regard to all the circumstances, including – (a) the conduct of all the parties; (b) whether a party has succeeded on part of its case, even if that party has not been wholly successful; and (c) any admissible offer to settle made by a party which is drawn to the court’s attention, and which is not an offer to which costs consequences under Part 36 apply.’
‘Costs of interim injunctions 1. Where the purpose of an interim injunction is to 'hold the ring' until trial, the costs of the application will usually be reserved: Richardson v Desquenne et Giral UK Ltd [1999] C.P.L.R. 744; [2001] F.S.R. 1, Picnic at Ascot v Kalus Derigs [2001] F.S.R. 2. The Desquenne principle overrides the usual rule that the unsuccessful party bears the costs because, in a case where the injunction is granted on the balance of convenience, at that stage there is no winner or loser: Wingfield Digby v Melford Capital Partners (Holdings) LLP[2020] EWCA Civ 1647 . Where however the injunction is granted not merely on the balance of convenience and the issues considered on the application will not be revisited in the substantive proceedings, if there is a winner and a loser on those issues, the loser should pay the winner’s costs: Koza Ltd v Koza Altin Isletmeleri AS[2020] EWCA Civ 1263 .’
‘4. Accordingly, one can see that where an interim injunction is granted, it is (in the usual case) wrong to say that the defendant was the unsuccessful party or that the claimant was the successful party. Ex hypothesi, the claimant only succeeded by meeting the low requirement of serious issue to be tried. 5. In this case, of course, the interim injunction was not granted. More to the point, the reason it was not granted was not because there was no serious issue to be tried (I found there was – and, at least at the hearing, there was little push-back on this point from Mylan), but because damages were (as I found) an adequate remedy. The application therefore failed at what I called Stage 2 of the American Cyanamid process. 6. I do not consider that the reasoning of Neuberger J automatically or inevitably translates to this case. Whereas the merits of the dispute are revisited, indeed determined, at trial, the question of the adequacy of damages is principally one to be assessed at the interlocutory stage. It therefore seems to me that this case should not be treated as one of those exceptional cases where costs are reserved to the trial judge, but rather are dealt with now.’
‘As Mr Shepherd correctly said his clients had secured the return of the laptop (the return of which they had never asked for before issuing proceedings) and had secured the benefit of preventing (for the time being) the convening of a meeting of limited partners and the use of information obtained either electronically from them or by other means and whether lawfully or otherwise. The second of these benefits is, in our judgment, without significance on the question of costs. Whenever a claimant successfully seeks an interim injunction preventing the defendant from doing something (whether using a right of way, working for a competitor or infringing a patent) the defendant will be stopped from doing whatever it is for the time being. That was precisely the case in both Desquenne and Picnic at Ascot. However, the judge's decision that he was unable to resolve the merits of the disputes means that the basis on which those orders were obtained and continued, without objection from the Appellant, may prove in the end to have been unfounded. ‘Success’ of this type is only a provisional one. On the other hand, a ‘costs reserved’ order does not mean that claimants generally, or these Respondents in particular, will never recover the proper proportion (if not all) of their claimed costs: the matter is open and the costs have been neither won nor lost by either side at this stage.’
‘Whether the interim injunction is granted or refused, the court may reserve the interim costs to the trial judge. This option may be appropriate where the application is decided on the balance of convenience and the judge is simply ‘holding the ring’ pending a trial or other determination (Desquenne et Giral UK Ltd v Richardson [1999] C.P.L.R. 744; [2001] F.S.R. 1). This was followed in Picnic at Ascots Inc v Derigs [2001] F.S.R. 2 where Neuberger J suggested that the usual order where a claimant obtained an interim injunction was for costs to be reserved. He noted that the facts were still to be contested and costs orders should not discourage defendants from agreeing to a sensible interim course. The costs in such circumstances could be determined once the true merits of the application were able to be assessed. The effect of this is that such costs will follow the outcome of the trial unless otherwise ordered (or need to be provided for if the claim is compromised before trial). 5-45 As Moore-Bick LJ said in R. (Hysaj) v Secretary of State for the Home Department [2015] 1 W.L.R. 2472 ‘in some cases, of which Desquenne et Giral UK Ltd v Richardson is an example, it may be appropriate to defer making an order for costs until the outcome of the substantive proceedings is known, but that will not invariably be the best course'. However, a court may order that the claimant should recover his costs in any event where the merits of the application were so obvious that it should not have been contested or when it is clear that a trial is unlikely to take place. The defendant may get his costs if the injunction application was brought in an over-aggressive way and concluded by undertakings which could have been obtained by pre-action dialogue (Pathology Group Ltd v Reynolds[2011] EWHC 3958 (QB) ). A court will still be willing to make a cost order to mark any improper or unreasonable conduct by one of the parties in the course of an interim application. The risks with a determinative costs order is that it may later transpire that the injunction was obtained or declined on an incorrect basis rendering it unjust for the party successful at the interim stage to have had his costs paid by the losing party. As Andrew Smith J observed in Dar Al Arkan Real Estate v Al Refai[2015] EWHC 1793 , there Is no straightforward legal mechanism to require a recipient to disgorge costs already paid. The Court of Appeal reaffirmed the Desquenne approach of reserving costs in Wingfield Digby v Melford Capital Partners (Holdings) LLP[2020] EWCA Civ 1647 ; [2021] 1 W.L.R. 1553. In a hotly disputed case, in which the underlying issues are impossible to determine at the interim stage, it is often wrong to try to identify a winner and a loser and so costs should generally be reserved unless there are some special factors in play. Where the purpose of the injunction is not to ‘hold the ring’ until trial, there is no reason to reserve the costs. In Koza Ltd v Koza Altin Isletmeleri AS[2020] EWCA Civ 1263 ; [2020] Costs L.R. 1479 the Court of Appeal determined costs following an unsuccessful appeal against an interim injunction preventing the dissipation of the company’s assets. The controlling individual was ordered to pay them in person as a costs order against the company would prejudice the successful party.’
“It follows from what I have said already, that it seems to me that the only proper exercise must be that the costs of both parties are to be reserved to the trial judge because only then can it be determined which party is successful and which is unsuccessful.”
“Sandoz can undertake not to dispose of any further product and are taking steps as of now to ensure that happens. Please provide the terms of the undertaking as soon as possible. In the circumstances we do not think that urgent interim relief is necessary.”