The High Court has reserved the costs of Glaxo’s failed application for an interlocutory injunction against Rowex, finding it was not possible to decide fairly at this stage which side should bear them. It made no order for costs on a separate issue concerning an Article 104 stay.
The ruling by Mr Justice Max Barrett concerns costs only. It does not decide the underlying dispute or make a final determination about Glaxo’s entitlement to an injunction.
The court said the costs rule generally requires a decision on costs when an interlocutory application is determined. However, costs may be reserved where it is not possible to adjudicate fairly on liability at that point. The judge reviewed earlier decisions distinguishing applications that are discrete events from injunction applications whose issues may arise again at trial.
Glaxo’s injunction application had been refused after a three-day hearing. Rowex had argued that Glaxo had not established a fair issue to be tried, and the court said Rowex ultimately succeeded on that point. The judge noted that a significant part of the hearing, perhaps as much as half, was taken up by that argument. He nevertheless concluded that this did not make an immediate costs award appropriate.
A central issue at the full trial will be whether damages would be an adequate remedy for Glaxo. The interlocutory court had considered damages suitable, but the judge said the trial court could reach a different conclusion after hearing the case and considering any further evidence. If Glaxo ultimately succeeds and obtains a permanent injunction in the same form as the interim relief it had sought, an immediate order requiring it to pay Rowex’s costs could produce an unjust result.
The court therefore reserved the costs of the injunction application for later consideration, concluding it could not justly decide liability on the interlocutory application alone. Separately, it declined to make any costs order concerning the Article 104 issue, which the court itself had raised during the injunction proceedings and on which the parties were then required to make submissions.