IEHC 60 — IEHC 60 — High Court

THE HIGH COURT [Record No. 2025/5550 P] [2025] IEHC 60

BETWEEN

SOMNUS GMC WATERFORD LIMITED AND SOMNUS GMC CARLOW LIMITED

PLAINTIFFS

AND

MICHAEL FLYNN AND MATTRESS MICK LIMITED

DEFENDANTS

JUDGMENT of Ms Justice Bolger dated the 3rd day of February 2026

1. This is the defendants’ application for costs of an interlocutory injunction application which

they successfully defended. The plaintiffs contend that the costs should be reserved to the trial

judge because a different picture may emerge at that stage.

2. Order 99, rule 2(1) and (3), subject to the provisions of s. 168 and 169 of the Legal Services

Regulation Act 2015, require this Court to determine the costs of an interlocutory application unless

it is not possible to do so justly. As Butler J stated in Thompson v Tennant [2020] IEHC 693, at

para. 10

"The test is not whether the trial court will be better placed to make that adjudication but

whether it is not possible for the interlocutory court to do so – accepting of course that it

must be possible to carry out that adjudication ‘justly’".

3. The principal judgment in this application for interlocutory injunctive relief was delivered on

28 November 2025 I refused the injunction sought on the grounds that the plaintiffs failed to

establish a fair issue to be tried, i.e. a reasonably arguable case, in respect of the following three

points that they raised:

(i) The application of the terms and conditions of the agreement between the plaintiffs

and the defendants;

(ii) A collateral purpose to the termination of the agreement;

(iii) The standing of the second defendant. 2

(i) The application of the terms and conditions of the agreement between the plaintiffs

and the defendants

4. On the construction of the terms of the written agreement and on the basis that the plaintiffs

claim that they were given assurances different to those terms were mere assertions, I found there

was no fair issue to be tried. This conclusion rested largely on the construction of the said terms

and the absence of any evidence of assurances by the first defendant different to them or any

evidence of representations made to the plaintiffs by either defendant.

(ii) Collateral purpose

5. I found there was no fair issue to be tried here because the written terms allowed for a 30-

day no fault termination and did not include the disputed area in the territory set out in those written

terms. I distinguished the decision of Braganza v BP Shipping Ltd & Anor [2015] UKSC 17 on its

facts. That conclusion is, also, on the construction of the written terms and conditions.

(iii) The standing of the second defendant

6. I found there was no fair issue to be tried on this point because of the written assignment

clause in the agreement and the content of certain correspondence. I also had regard to the

provisions of the Trade Marks Act, 1996. Those conclusions are also on the construction of the

written terms and the interpretation of statutory provisions.

7. In my principal judgment, I gave an indicative view that I would follow the decision of the

Court of Appeal in Yoplait Ireland Ltd v Nutricia Ireland Ltd [2025] IECA 210 and reserve costs to

the trial judge. However, having heard further from the parties, I have been persuaded by counsel

for the defendants that Yoplait should be distinguished as a case that revolved around findings of

fact as to whether the limbs of the test for passing of had been established. In those circumstances,

Hyland J held at paras. 12-13:-

“[Interlocutory] proceedings often involve issues that are central to the substantive trial and

may be significantly affected by evidence not yet available... The issues raised in this appeal

will be revisited at the substantive trial. If they go against Yoplait and it transpires that the

test for passing off is not met, then it would be unjust to impose the costs of this appeal on

Danone in circumstances where it stands that it is not passing of – and on that basis,

appealed the decision to grant an interlocutory injunction restraining it from passing of – will

have been vindicated.”

8. Counsel for the plaintiffs argue that this is a case where a different picture may emerge at

trial once the evidence has been fully put before the court. However, the other issues on which I 3

decided against the plaintiffs, mainly the adequacy of damages, will not be revisited and even if the

plaintiff had established a fair issue to be tried, it seems they would still have failed to secure an

interlocutory injunction for that reason. In those circumstances, it seems to me that this case comes

within the same category as arose in McLaughlin & Anor v Fennell & Ors [2024] IEHC 178 where

Simons J held, at para. 35:

"The issue on which I have decided the application for an interlocutory injunction will not be

revisited".

Conclusion

9. This Court can adjudicate justly on costs and in accordance with the relevant statutory

provisions, and therefore it should do so. The injunction application was refused for reasons largely

around the construction of written terms and because of the adequacy of damages as a

remedy. Even if the trial judge has evidence before them supporting the plaintiffs’ case that the

defendants’ termination of their licence agreement was unlawful, it does not alter the fact that the

plaintiffs have been found not to be entitled to injunctive relief at this stage for reasons that will not

be affected by the evidence to be adduced at trial. I therefore allow the defendants the costs, to

include the costs of the within costs application, but I will put a stay on the execution of all costs

orders pending the final determination of the entire proceedings.

Counsel for the plaintiffs: Neil Rafter BL

Counsel for the defendants: Neal Flynn BL