The High Court has reserved the costs of an interlocutory injunction application by Flogas Ireland Limited and DCC Energy Limited against North West Gas Company Limited until the trial of the action, finding that the underlying factual disputes could look different after a full hearing.
In a ruling delivered on 6 November 2020, Mr Justice David Keane also granted North West leave to file late submissions on costs and took them into account. He made no order on directions for an early trial because North West said the parties had agreed a preparation timetable. Flogas and DCC were given liberty to apply if they wished to dispute that assertion.
The costs ruling followed an earlier judgment on 9 October 2020 concerning five injunctions sought by Flogas and DCC. The judge said the applicants had established a strong arguable case of copyright infringement relating to Flogas’s Industrial LPG supply agreement, and granted an injunction on that issue. He found a serious issue to be tried over an alleged breach of the parties’ contractual relationship or settlement agreement, but not a strong arguable case. He found no serious issue to be tried on the alleged breach of fiduciary duty or unlawful interference with contractual relations.
The court did not decide the defamation and malicious falsehood allegations at that stage. North West gave an undertaking on the morning of the injunction hearing that it would not communicate or suggest to anyone that Flogas or DCC was ceasing all or part of its operations in County Donegal, pending trial. The undertaking was without prejudice to North West’s position that it had made no such suggestion.
For the costs decision, the judge considered the competing outcomes and the time spent preparing and presenting the issues on which each side obtained a benefit or avoided a detriment. He said neither party’s characterisation of the application as a success for one side was entirely accurate, and that the allocation of time between the issues on which each side prevailed was roughly equal. In the absence of other considerations, he said, no order as to costs would have been appropriate.
But the injunction application turned on disputed matters that may be resolved differently at trial, including the parties’ contractual relationship, their dealings with LPG customers in Donegal, and copyright ownership and use. The judge said a provisional assessment made on the evidence available at the injunction hearing could prove incomplete or incorrect after the facts and law were fully considered. He therefore reserved the application’s costs to the trial.