The Court of Appeal has dismissed an appeal and cross-appeal over costs in a copyright injunction case brought by Sony Music Entertainment (Ireland) Ltd, Universal Music Ireland Ltd and Warner Music Ireland Ltd against UPC Communications Ireland Ltd.
In a judgment delivered on 24 March 2017, Ms Justice Finlay Geoghegan upheld the High Court order that the music companies recover 60% of their costs up to 27 March 2015, the date of the High Court’s substantive judgment. For the period after that judgment, each side had been ordered to bear its own costs; that part of the order was not challenged on appeal.
The underlying proceedings sought an injunction under section 40(5A) of the Copyright and Related Rights Act 2000 against UPC, an internet service provider the court accepted had not itself infringed copyright or committed a legal wrong. The High Court granted an injunction, and the Court of Appeal later upheld it with minor variation. In the costs dispute, the music companies argued that, having won the main issue, they should receive the ordinary costs-follow-the-event order. UPC argued that its success on some issues and the novel, test-case nature of the proceedings justified a different costs outcome.
The Court of Appeal said the trial judge was entitled to weigh the music companies’ success in obtaining the injunction against UPC’s success on issues concerning its terms. The trial judge’s 60% net award reflected an assessment that the issues won by UPC accounted for 20% of the overall costs. The appellate court said neither side had shown that this approach was erroneous or unjust. It also said the trial judge had not relied on the case’s test-case character, and that a test case between private parties does not generally justify depriving a successful party of its ordinary costs entitlement.
The music companies also sought appeal costs on an indemnity basis, arguing UPC had taken inconsistent positions on cost sharing. The court rejected that request. It awarded the music companies the costs of the appeal on the usual party-and-party basis only, rather than a solicitor-and-client basis.