The Court of Appeal has reduced the costs recoverable by Merck Sharp & Dohme companies after finding that significant parts of their jurisdiction case against rival Merck companies had failed.
In a costs judgment delivered on 26 November 2025, Mr Justice Denis McDonald awarded the defendants two-thirds of their party-and-party costs from the High Court application and 50% of their appeal costs.
The ruling follows a September 2025 Court of Appeal judgment in litigation involving Merck KGaA and related companies on one side and Merck Sharp & Dohme LLC and Merck Sharp & Dohme Ireland (Human Health) Limited on the other.
The practical outcome of that earlier judgment was that proceedings against the US-based first defendant remained struck out, while proceedings against the Irish second defendant remained stayed. However, the legal basis for parts of that result changed on appeal.
The plaintiffs had argued that the defendants should recover only half their costs because neither side had succeeded on every issue. The defendants sought all of their costs, emphasising that the plaintiffs had failed to reverse the practical effect of the High Court orders.
The Court of Appeal agreed that the defendants were broadly successful, particularly on the attempt to serve proceedings on the first defendant outside Ireland and on Article 30 of the Recast Brussels Regulation.
However, the court found it had not been reasonable for the defendants to pursue their arguments under the EU Trade Mark Regulation and Article 29 of the Recast Brussels Regulation. Those arguments failed because insufficient evidence had been produced to establish that the interests of the relevant Irish and German defendants were "identical and indissociable" for jurisdictional purposes.
Those failed issues occupied a substantial portion of the two-day appeal hearing and preparation. The court therefore reduced the recoverable costs accordingly.
Allen and O'Moore JJ agreed with the costs order.