Warner-Lambert Company LLC v Sandoz GmbH & Anor

Where an interim injunction has been granted on the basis of the balance of the risk of injustice, costs will ordinarily be reserved to the trial judge. The court retains discretion to make a different order where the circumstances warrant it. A party applying to vary an injunction may be treated as unsuccessful where it establishes a material change in circumstances but fails to show that the balance of the risk of injustice should be reassessed in its favour. In that event, the successful party may receive its costs of the variation application.

The claimant had obtained an interim injunction against the defendants. The defendants later applied to vary it, relying on a material change in circumstances. The court accepted that change but dismissed the application, concluding that the balance of the risk of injustice remained unaffected. The parties agreed that costs should be determined on paper. The issue was whether costs should be reserved to the trial judge, as commonly occurs with interim injunctions, or should follow the result of the variation application.

1. The court accepted the ordinary approach stated in Desquenne et Giral UK Ltd v Richardson [2001] FSR 1: where an interim injunction is granted on an assessment of the balance of the risk of injustice, costs will normally be reserved to the trial judge.
2. That approach is discretionary. The court may make a different order where the particular circumstances warrant it, as recognised in Picnic at Ascot v Derigs [2001] FSR 2.
3. The defendants had to establish both a material change in circumstances and that the new circumstances justified a different assessment of the balance of the risk of injustice. Although the first requirement was satisfied, the second was not. The court therefore regarded the defendants as unsuccessful in their application.
4. The defendants were ordered to pay the claimant’s costs. The claimant’s claimed costs of £145,775 were summarily assessed at £100,000 as a reasonable and proportionate sum.