Cafolla -v- Kilkenny & Ors, [2010] IEHC 24 (2010)

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Cafolla -v- Kilkenny & Ors, [2010] IEHC 24 (2010)

THE HIGH COURT

COMMERCIAL2007 2078 P

BETWEEN

IVANO CAFOLLAPLAINTIFFAND

OSSIE KILKENNY, JERRY O'REILLY,

LYTTLETON ENTERPRISES LIMITED

AND

CONEFORTH TRADING LIMITEDDEFENDANTSJUDGMENT of Mr. Justice Ryan delivered the 5th day of February 2010

This case is a review of taxation in respect of three major items of a bill of costs. The first three defendants are the paying parties and they have challenged the awards made by the Taxing Master in respect of the solicitors' instructions fee and the brief fees of senior and junior counsel who acted for the plaintiff.

The action began with the issue of a plenary summons on the 16th March, 2007 and it was admitted to the Commercial Court where it proceeded according to a tight schedule. The case did not go to a hearing in the end because the defendants made a series of concessions leading ultimately to their consenting to an order in terms sought by the plaintiff. Also by consent, the Court ordered the costs of the action to be paid to the plaintiff when they were taxed and ascertained.

The background to the case was a plan to acquire and develop Tolka Park in Drumcondra, Dublin for residential purposes. The plaintiff, Mr Kilkenny and Mr O'Reilly were shareholders in the fourth defendant, Coneforth Trading Ltd. It was necessary in order to perfect the title to the property to secure the lessee's interest in a 99 year lease of the land that was known as the "Donnelly Interest." This was done by agreement with the owners but the interest was actually transferred to Lyttleton Enterprises Ltd and not Coneforth. The primary relief claimed by the plaintiff in the action was a declaration that Lyttleton held the Donnelly interest in trust for Coneforth. He made this claim as minority shareholder in Coneforth against the company and the majority shareholders who denied his allegations. This type of proceeding is known as a derivative action and it presented substantial difficulty because the plaintiff was endeavouring to prove as against the company and its controllers that the company's interests were being damaged. Notwithstanding these obstacles, the plaintiff pursued his claim and succeeded. He then proceeded to recover the costs against the first, sec...

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