The Court of Appeal has deferred a decision on who should ultimately pay the legal costs of an appeal in the skyr yoghurt dispute between Yoplait Ireland Limited and Nutricia Ireland Limited, referred to in the judgment as Danone.
In a supplemental judgment delivered on 24 October 2025, Ms Justice Hyland ruled that the costs incurred by both sides in the appeal should be "costs in the cause", meaning liability will depend on the outcome of the substantive passing-off proceedings.
The Court of Appeal had already ruled on 1 August 2025 that an interlocutory injunction restraining Danone from passing off its skyr products as Yoplait's should remain in place. The injunction is temporary relief pending a full trial and does not amount to a final finding that passing off occurred.
Yoplait argued that, having successfully defended the injunction on appeal, it should receive its costs. Danone maintained that the central passing-off questions will be reconsidered at trial and that deciding costs now could produce an unfair result if Yoplait ultimately loses the substantive action.
The court accepted Danone's position on that point. Ms Justice Hyland said the issues raised in the appeal will return at trial and that it would be unjust to require Danone to pay the appeal costs now if its position is later vindicated on the full evidence.
If Yoplait ultimately establishes that Danone was passing off its skyr yoghurt as Yoplait's, the trial court may award it the costs of the overall proceedings, including the appeal.
However, the Court of Appeal also held that Yoplait should not recover all of its appeal costs even if it eventually becomes entitled to them. Danone had succeeded on a limited but important issue concerning the form of the High Court order, which the appeal court varied.
Accordingly, any eventual recovery by Yoplait of the appeal costs will be capped at 80%. The costs of the separate costs application will also remain costs in the cause.