The High Court has decided that Yoplait Ireland's costs of obtaining an interlocutory injunction against Nutricia Ireland will depend on the eventual outcome of their passing off proceedings rather than being awarded outright now.
Mr Justice Max Barrett had granted Yoplait the injunction on May 2, 2025. In a later judgment delivered on July 31, he ordered that Yoplait's costs of that application, together with the costs of the subsequent costs hearing, be "costs in the cause". In practical terms, those costs will follow the final outcome of the substantive proceedings. No order was made for Nutricia's costs of the injunction application.
The judge explained that Yoplait had succeeded at the interim stage only by establishing that it had an arguable case, or a fair issue to be tried, on the elements required for passing off. It had not yet proved those elements at a full trial.
That distinction was central to the ruling. Mr Justice Barrett said the trial judge may receive a different evidential picture and could ultimately find that Yoplait has failed to establish one or more parts of its case. An immediate costs award could therefore wrongly treat interim success as if it were a final victory.
The court also referred to Yoplait's undertaking as to damages, which was given as the price of obtaining the injunction and is intended to protect Nutricia against losses if the restraint ultimately proves unjustified. The judge considered that imposing a significant immediate costs liability on Nutricia could undermine that protection.
He rejected, however, Nutricia's suggestion that the costs question should simply be reserved entirely to the trial judge. Instead, following the approach taken in an earlier injunction case, he fixed the present costs position now while leaving recovery dependent on the substantive result.
The ruling decides only who may ultimately recover the interlocutory costs. It does not determine the passing off claim itself.