In an interesting follow up to last week’s findings by the High Court in favour of McCambridges in the case of McCambridge Limited v Joseph Brennan Bakeries, the High Court today ruled that McCambridges are only entitled to recover 40% of their costs of the High Court action against Brennans.

In many other jurisdictions (particularly the US) a losing party is not ordered to bear the legal costs of the winner. However that is the position in Ireland. As a result, McCambridges are likely to be as unhappy with this ruling as Brennans were with the court’s ruling last week. It remains to be seen if they can settle their differences or if the case will be appealed to the Supreme Court.

The reason the judge made this finding was that McCambridges advanced a number of claims (which took up quite a bit of the time involved in the case) which were not successful. Chief amongst these was the claim that Brennans deliberately set out to mimic McCambridges’ packaging. Since proving an intent to mislead the consumer is not necessary to succeed in a passing off action it is open to question as to why McCambridges took this approach.

McCambridges also claimed copyright infringement and breach of the Consumer Protection Act but these did not take up much time in the case so they weren’t material to the issue of costs.

This case now offers an important lesson to intellectual property rights holders and brand owners. They should limit the scope of their claims in any legal action to the essential elements of their claim to have the maximum chance of recovering costs against the defendant.