Adelina Ltd v Ken Tyrell
| Jurisdiction | Ireland |
| Judge | Mr. Justice Dignam |
| Judgment Date | 26 April 2022 |
| Neutral Citation | [2022] IEHC 240 |
| Court | High Court |
| Docket Number | [RECORD NO. 2021 1925 P] |
[2022] IEHC 240
[RECORD NO. 2021 1925 P]
THE HIGH COURT
Costs – Replies to particulars – Disclosure of information – Parties seeking costs – Whether the costs of the motion should be costs in the cause
Facts: The plaintiff, Adelina Ltd, brought two motions before the High Court: one seeking case management and/or a mandatory injunction in respect of certain works to a building owned by the first defendant, Lartigue Enterprises Ltd, over which the second defendant, Mr Tyrell, had been appointed receiver; and the other seeking various reliefs including replies to particulars, inspection facilities, and disclosure of the identity of all parties exercising control over the building and/or in receipt of any income, rents or profits from the building. There was a considerable narrowing of the issues in respect of the second motion. On the evening before the matter came on for hearing the plaintiff was informed that the building had been sold and, in circumstances where the injunction could no longer be obtained against the defendants (as they were no longer the owners), the matter in respect of the first motion proceeded as a dispute about the costs of the motion only.
Held by Dignam J that, in the context of s. 169(1)(b) of the Legal Services Regulation Act 2015, the position of both parties was supported by reputable expert opinion. It seemed to Dignam J that prima facie their positions must be seen as being reasonable and, in the absence of a determination as to which expert opinion was correct or should be preferred, it was impossible to fix one or other party with liability for costs; to do so on a costs application without the opinions being interrogated through cross-examination risked an injustice. In all of the circumstances, it seemed to Dignam J that the appropriate order in respect of the costs of the plaintiff’s motion for a mandatory injunction was to reserve the costs to the trial of the action.
Dignam J held that the plaintiff was successful in obtaining some of the reliefs and was unsuccessful in respect of others and, in respect of the reliefs which were withdrawn, it was difficult to see how it could be entitled to its costs in respect of the Malachy Walsh & Partners report when ultimately it did not pursue any issues in relation to the copy that was provided prior to the issuing of the motion or in respective of inspection of the building due to the lack of any warning letters or pre-application correspondence. Dignam J was inclined to the view that, taking all the different aspects of the plaintiff’s second motion into account (including the fact that both parties succeeded to some extent), the appropriate course was to make the costs of the motion costs in the cause.
Costs in the cause.
Judgment of Mr. Justice Dignam delivered on the 26th day of April, 2022.
This matter came before the Court by way of two motions: one seeking case management and/or a mandatory injunction in respect of certain works to a building owned by the First-named Defendant (“Lartigue”) over which the Second-named Defendant had been appointed receiver; and the other seeking various reliefs including replies to particulars, inspection facilities, and disclosure of the identity of all parties exercising control over the building and/or in receipt of any income, rents or profits from the building. There was a considerable narrowing of the issues in respect of the second motion and I deal with that towards the end of this judgment.
On the evening before the matter came on for hearing the Plaintiff was informed that the building had been sold and, in circumstances where the injunction could no longer be obtained against the Defendants (as they were no longer the owners), the matter in respect of the first motion proceeded as a dispute about the costs of the motion only.
At the material times, Lartigue owned a multi-storey building in Ballybunnion which was previously used as a hotel, known as the Golf Hotel. The Plaintiff owned (and still owns) a corner unit of the building. The Plaintiff's unit is essentially enveloped by Lartigue's part of the overall building, other than the walls of the unit which face onto the street. Most relevantly, directly above the Plaintiff's unit are a number of floors of Lartigue's building.
It seems that the building, save for the Plaintiff's unit, has been disused for a considerable period of time. Expert reports were exhibited to the various affidavits and, while there is disagreement between the experts on various points, there is no disagreement that the building is in very poor condition indeed. It is the Plaintiff's case that the very poor condition of the overall building has caused significant damage to the Plaintiff's unit particularly through water ingress through the floors above the unit. The Plaintiff claims that its tenant ceased paying rent to the Plaintiff in January 2020 due to the very poor condition of the unit and that ultimately in November 2020 the tenant handed back the keys. It should be noted that the Defendants do not accept that this is why the tenant gave up the unit but this is not an issue which has to resolved at this stage.
Builders engaged by the tenant around the time they ceased paying rent noted in a quotation that there was a large damaged area on the main roof of the hotel and that storm water was seeping through the floor onto the unit's ceilings, wall and floor. They stated that repair works would involve removing the damaged area of the roof at the top of the hotel, replacing the damaged plywood and re-felting the roof with flashing to prevent further storm water entering the building.
The Plaintiff had been engaging with solicitors for Lartigue and directly with a director of the company prior to this quotation. It seems clear from those contacts that there was no dispute but that the source of the water ingress into the unit was the poor condition of the building and in particular the poor condition of the roof. Indeed, it was suggested on behalf of Lartigue that damage to the roof of the hotel had been caused by the installation of a mobile telephone mast. There was discussion between the parties that if the Plaintiff arranged to pay for repair works to the roof Lartigue would undertake to refund the costs of same to the Plaintiff from any compensation which Lartigue might receive from the mobile operator (whom it suggested it was going to sue) or from the net proceeds of sale of the building and this was put in writing by one of Lartigue's directors. It seems that these discussions stalled in July 2020.
On the 16th July 2020, the Second-named Defendant was appointed as receiver to Lartigue by Everyday Finance DAC. It seems the Plaintiff was informed of this by letter from the solicitor for Lartigue on the 18th January 2021. By letter of the 29th January 2021 to Lartigue's solicitor the Plaintiff's solicitor asked for confirmation that Lartigue had contacted the receiver and also referred to the possible need to seek injunctive relief. In a reply of the 3rd February Lartigue's solicitor confirmed that the receiver was aware of the condition of the building.
The Plaintiff's solicitor wrote directly to the receiver on the 29th January 2021 in relation to the condition of the property and specifically the ingress of water into the Plaintiff's unit coming through the roof of the building. They sought confirmation that the receiver would take immediate action to rectify the situation by repairing the roof, failing which an injunction would be sought.
The receiver replied on the 4th February 2021 stating that he had sought quotes to carry out significant repairs to the roof and to try to ensure that the works would actually resolve the issues but that he was awaiting clarity in relation to when the contractor could start due to the public health restrictions which were in place at the time.
There were further letters from the Plaintiff's solicitor and the receiver replied on the 18th February and stated:
“The Company has selected a contractor to carry out the repairs.
As the Company is insolvent and has no funds available, it is reliant on the chargeholder to provide the funding in order for the works to commence as the contractor requires an up-front deposit with tight payment terms thereafter once the works commence.”
By letter to the receiver of the 1st March 2021 the Plaintiff's solicitor sought an undertaking that the receiver would remediate the leaking and water ingression prior to any sale of the property, failing which injunctive relief including “ a mandatory injunction directing remediation and prevention of the serial leaks and ingressions of water…” would be sought.
At the same time, there was correspondence between solicitors for the Plaintiff and solicitors for Lartigue. The latter's position was that their clients were impecunious and not in a position to undertake the works to repair the roof and indicated that the Second-named Defendant was aware and concerned about the roof and had limited resources inclusive of the licence income from the mobile phone mast.
Up to this stage, the focus of the Plaintiff's concerns was the water ingress into its unit through the building's roof and how it adversely impacted the Plaintiff's ability to use or to rent the unit.
The Plaintiff obtained a report from a Mr. Fergus Merriman, Chartered Building Surveyor, dated the 24th March 2021, which broadened the Plaintiff's focus to concerns of structural collapse of the building unless action was taken to repair the roof damage. I refer to the contents of this report below. It led to a further letter from the Plaintiff's solicitor to the receiver of the 26th March 2021 which stated:
“…Our client has in previous correspondence complained to both Lartigue...
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