The High Court has reserved the costs of an interlocutory injunction motion after the defendant gave an undertaking that the plaintiffs accepted as sufficient to end the motion. The court did not decide whether the plaintiffs were entitled to an injunction or determine the underlying dispute.
Mr Justice Dignam said it was not possible to adjudicate fairly on liability for the motion’s costs. He directed that the costs be reserved to the trial judge, rather than making no order or treating them as costs in the cause.
The plaintiffs, Lexington Services Limited and James Patrick Flannery, had sought an injunction restraining Brian Connell from disclosing or disseminating certain documents from a laptop formerly belonging to Bruce Basheer. The laptop had been provided to Mr Connell by Mr Basheer’s widow, according to an affidavit described in the judgment. The plaintiffs claimed the material included confidential, commercially sensitive or legally privileged information. The court did not decide those claims.
Before issuing separate proceedings, the plaintiffs sought undertakings that included restrictions on using or relying on laptop documents in the West Global proceedings and a requirement that Mr Connell re-swear an affidavit there without references to those documents. Mr Connell initially refused those requests. The parties then exchanged further offers and counter-offers after the motion was filed.
The undertaking ultimately accepted by the plaintiffs included an exception for documents already exhibited in Mr Connell’s affidavit of 19 October 2021. It did not include a commitment to stop relying on those documents in the West Global proceedings or to re-swear the affidavit. The plaintiffs had initially insisted that the exception be removed, but later accepted the undertaking as sufficient for the motion while reserving their position on costs.
In explaining his decision, Judge Dignam said the differences between the original demands and the undertaking ultimately accepted were fundamental to whether the court could fairly decide costs without determining the motion. He also considered the extended negotiations, the timing of the parties’ correspondence and their respective conduct. He made no finding on the merits of the confidentiality claims or on whether an injunction would have been granted.
The separate plenary proceedings were continuing. The costs decision concerned only the interlocutory injunction motion; the court left those costs for the trial judge to decide.