Yoplait Ireland Ltd v Nutricia Ireland Ltd

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Ms. Justice Hyland
• Judgment Date: 24 October 2025
• Neutral Citation: [2025] IECA 210
• Docket Number: Court of Appeal Record Number: 2025/138

Between:

Yoplait Ireland Limited

Plaintiff/Respondent

and

Nutricia Ireland Limited

Defendant/Appellant

[2025] IECA 210

Whelan J.

MacGrath J.

Hyland J.

Court of Appeal Record Number: 2025/138

High Court Record Number: 2025/1908P

THE COURT OF APPEAL

CIVIL

Judgment of Ms. Justice Hyland delivered on the 24 day of October, 2025

INTRODUCTION

1 The principal judgment in these proceedings was delivered on 1 August 2025, Yoplait Ireland Limited v Nutricia Ireland Limited [2025] IECA 163, whereby the decision of the High Court granting an interlocutory injunction restraining the Appellant/Defendant (“Danone”) from passing off its skyr products as those of the Respondent/Plaintiff (“Yoplait”) was upheld. This supplemental judgment addresses the costs of that appeal.

2 In the High Court, the trial judge, Barrett J. ordered that Yoplait's costs should be costs in the cause ( Yoplait Ireland Ltd. v. Nutricia Ireland Ltd. [2025] IEHC 537). No appeal was brought against that Order and therefore this judgment is only concerned with the costs of the appeal.

ARGUMENTS OF THE PARTIES

3 Danone submits that the appropriate order is for the costs of the appeal to be costs in the cause, or reserved to the trial of action, relying upon Order 99, r. 2(3) of the Rules of the Superior Courts (RSC), which provides that, inter alia, the Court of Appeal “upon determining any interlocutory application, shall make an award of costs save where it is not possible justly to adjudicate upon liability for costs on the basis of the interlocutory application.” Danone argues that the appeal involves issues that will reappear at trial, making it inappropriate to justly adjudicate costs at this stage, citing the decision of ACC Bank plc v Hanrahan [2014] 1 IR 1.

4 Danone argues that a full assessment of each limb of the Reckitt test is not feasible at the interlocutory stage, and that a determination on the issue of passing off is more appropriately made by the trial judge following a comprehensive evaluation of all the evidence. In support of this position, Danone refers to Heffernan v Hibernia College Unlimited Company [2020] IECA 121, where Murray J. recognised that interlocutory proceedings are often influenced by evidence not yet available at that stage. Further support is drawn from Paddy Burke (Builders) Limited v Tullyvaraga Management Company Limited [2020] IEHC 199, in which McDonald J. ordered costs in the cause, emphasising that it would be wholly unjust for the defendant/appellant to bear the costs of the interlocutory injunction, whether in the Circuit Court or the High Court, where the application was unsuccessful solely on balance of convenience grounds.

5 Yoplait argues for its entitlement to costs, citing the Legal Services Regulation Act 2015 (the “2015 Act”) and Little v. Chief Appeals Officer [2024] IESC 53. Section 168 of the 2015 Act gives courts broad discretion to award costs and s.169 contends that the person who is wholly successful is presumptively entitled to their costs. It argues that it was overwhelmingly successful in the appeal by defending the injunction and the variation of the order does not justify Barrett J's decision on costs. Yoplait acknowledges that even partially successful appeals can allow for an entitlement to costs, citing Higgins v. Irish Aviation Authority [2020] IECA 277, Coulston v. Doyle [2024] IECA 255 and Chubb European Group SE v. the Health Insurance Authority [2020] IECA 183.

ANALYSIS

6 The traditional approach to costs following a decision on an application for an interlocutory injunction was to reserve the costs to the trial judge. The case of Dubcap Ltd v Microcrop Ltd (Unreported, Supreme Court, Keane J. 09 December 1997) explains the rationale for this approach as follows:

“It is right to say, of course, that while there is no rule of court or even of practice to that effect, the normal procedure on the hearing of an interlocutory application is to reserve the costs to the trial judge. The reason for that is obvious: there may and very frequently will be matters which can only be resolved by the court of trial on oral evidence at a plenary hearing of the action and indeed matters may come to light by way of discovery or by way of new evidence not available to the parties at the time of the hearing of an interlocutory application which may bring about a result which seemed unlikely or improbable at the time of the hearing of the interlocutory application, so for that reason it is quite normal on the hearing of interlocutory applications to reserve the costs. But that is not to say that the court does not retain its discretion to deal with costs in what appears to it to be the most just manner possible.”

7 A similar approach was taken by Laffoy J. in O'Dea v Dublin City Council [2011] IEHC 100. This case concerned a dispute between a tenant and the Council. The plaintiff sought an interlocutory injunction directing re-housing, which was settled before hearing. The court held that, in the absence of a determination on the merits, it was not its function to determine liability for costs and made no order as to costs. At paragraph 6.5 Laffoy J. quoted Keane J. in Dubca...