Yoplait Ireland Ltd v Nutricia Ireland Ltd [No. 2]

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr Justice Max Barrett
• Judgment Date: 31 July 2025
• Neutral Citation: [2025] IEHC 537
• Docket Number: [2025 No.1908 P]

Between

Yoplait Ireland Limited

Plaintiff

and

Nutricia Ireland Limited (2)

Defendant

[2025] IEHC 537

[2025 No.1908 P]

THE HIGH COURT

Passing off – Interlocutory injunction – Costs – Plaintiff seeking costs – Whether it would be unfair and inappropriate to make a simple order for costs in favour of the plaintiff

Facts: The plaintiff, Yoplait Ireland Ltd (Yoplait), by notice of motion of 10 April 2025, sought, inter alia: "An interlocutory injunction restraining [the defendant, Nutricia Ireland Ltd (Nutricia)], its servants or agents, from passing off its skyr products as those of [Yoplait]". The High Court (Barrett J) granted the interlocutory injunction sought, subject to Yoplait giving an undertaking as to damages ([2025] IEHC 301). He decided the three limbs of the standard test for passing off by reference to whether Yoplait had an arguable case on each of those limbs. He included text to the effect that nothing he said in the judgment should be read or construed as indicating any view as to how the substantive element of the matter would proceed.

Held by Barrett J that it would be unfair and inappropriate to make a simple order for costs in favour of Yoplait in circumstances where Yoplait may yet be found at the trial to have failed to establish one or more limbs of the test for passing off; to make such an order would also be unfair and inappropriate in that it would effectively render Yoplait’s undertaking as to damages largely or wholly illusory. He did not see that this was an application in which (to echo O. 99, r. 2(3) RSC) it was "not possible justly to adjudicate upon liability for costs on the basis of the interlocutory application". He did not accept the contention of counsel for Nutricia that he might properly reserve the issue of costs to the trial judge - though he noted that this possible course of action, while raised in the written submissions of counsel for Nutricia, was not assiduously pursued at the hearing of the costs application. He noted that, in Paddy Burke (Builders) Ltd (In Liquidation and In Receivership) v Tullyvaraga Management Co. Ltd [2020] IEHC 199, McDonald J found, in an injunction application, that there was no serious issue to be tried. McDonald J accepted, however, that the position could be different at trial after the defendant had the benefit of discovery; as a result, when it came to costs he made an order for costs in the cause to the successful party and no order for the unsuccessful party’s costs. The course of action taken by McDonald J seemed to Barrett J to be the correct and fairest way to approach matters in this case.

Barrett J ordered that Yoplait’s costs of the interlocutory application and of the costs application should be costs in the cause. He made no order as to the costs of Nutricia.

Costs in the cause.

JUDGMENT of Mr Justice Max Barrett delivered on 31 ^st July 2025 .

Summary

This judgment follows a costs application brought by Yoplait after its previous successful application for interlocutory injunctive relief. In this judgment, I explain why (i) I will order that Yoplait's costs of the interlocutory application shall be costs in the cause and (ii) I will make no order as to the costs of Nutricia (Danone).

1 . This is a judgment concerning a costs application by Yoplait following on my judgment of 2 ^nd May 2025 ( [2025] IEHC 301) in these passing off proceedings, pursuant to which I granted an interlocutory injunction to Yoplait.

2 . Instinctively one might expect that as Yoplait succeeded in its application for an injunction...