Anthony Elliott and Anne Elliott v ACC Bank Plc, Patrick Condon and James Halley

• Jurisdiction: Ireland
• Judge: Ms. Justice Faherty
• Judgment Date: 18 January 2021
• Neutral Citation: [2021] IECA 11
• Docket Number: Appeal Number: 2017/589
• Court: Court of Appeal (Ireland)
• Date: 18 January 2021

Between:

Anthony Elliott and Anne Elliott

Plaintiffs/Appellants

and

ACC Bank Plc, Patrick Condon and James Halley

Defendants/Respondents

[2021] IECA 11

Costello J.

Faherty J.

Power J.

Appeal Number: 2017/589

THE COURT OF APPEAL

Negligence – Breach of duty – Costs – Defendants seeking costs – Whether the nature and circumstances of the case warranted the no costs order sought by the plaintiffs

Facts: The plaintiffs, Mr and Ms Elliott, pleaded that, due to the negligence, breach of duty, breach of fiduciary duty, and breach of contract of the defendants, ACC Bank Plc, Mr Condon and Mr Halley, they had obtained a “home savings plan” rather than an “endowment policy” and that the home savings plan was not a suitable vehicle for the purchase of their business. The plaintiffs’ claim against the first defendant was struck out on 1 February 2016. The plaintiffs appealed to the Court of Appeal from the order of the High Court (Ní Raifeartaigh J) dated 30 November 2017 (perfected 8th December 2017) dismissing their case against the second and third defendants and awarding the second and third defendants their costs. On 13 October 2020, the Court of Appeal (Faherty J) dismissed the plaintiff’s appeal (the principal judgment). At para. 138 of the principal judgment, Faherty J indicated a provisional view that as the second and third defendants could provisionally at least be deemed “entirely successful” for the purposes of the Legal Services Regulation Act 2015, an award of costs in their favour should follow and that if the plaintiffs wished to submit that an alternative order should be made they had liberty to deliver written submissions within fourteen days of delivery of the judgment with the second and third defendants thereafter each having fourteen days to deliver their replying submissions on costs. Submissions were received from all relevant parties. As the successful parties in the appeal, both the second and third defendants sought their costs. The plaintiffs’ position was that the Court should make no order as to costs given what was described by the plaintiffs in their written submissions as the “unusual circumstances” surrounding the preliminary hearing on the Statute of Limitations issue which formed the basis of the High Court judgment under appeal. They also pointed to the fact that it was not unreasonable for them to have challenged, during the course of the appeal, the judgment of this Court in Cantrell v AIB [2019] IECA 217 given that same had only recently been delivered. The plaintiffs also contended that they were successful as regards the third issue in the appeal, namely whether the trial judge erred in determining that no prima facie case in negligence was made out against the third defendant.

Held by Faherty J that the plaintiffs’ submissions on costs did not engage in any meaningful way with the salient findings of the Court in the principal judgment. In Faherty J’s view, therefore, they had not established any basis upon which the Court should not make an award of costs in favour of the second and third defendants. Faherty J held that the particular nature and circumstances of the case, as relied on by the plaintiffs, did not warrant the no costs order sought by them; equally, there was nothing in the conduct of the second and third defendants, either before or during the proceedings (including the appeal), to deprive them of the costs in the appeal.

Faherty J held that the Court would stay the execution of the costs Order for 28 days pending any application by the plaintiffs to the Supreme Court for leave to appeal; if such application was made, there would be a stay pending the determination of the leave application and, in the event that leave to appeal was granted, there would be a stay on the execution of the costs Order pending the determination of the Supreme Court appeal.

Costs to be awarded in favour of the second and third defendants (against the plaintiffs), with a stay on costs in the usual terms.

UNAPPROVED

Ruling of Ms. Justice Faherty delivered on the 18 ^th day of January 2021

1 . Judgment in this matter was delivered by the Court on 13 October 2020 (“the principal judgment”). The plaintiffs' appeal was dismissed. At para. 138 of the principal judgment, I indicated a provisional view that as the second and third defendants could provisionally at least be deemed “entirely successful” for the purposes of the Legal Services Regulation Act 2015 (“the 2015 Act”), an award of costs in their favour should follow and that if the plaintiffs wished to submit that an alternative order should be made they had liberty to deliver written submissions within fourteen days of delivery of the judgment with the second and third defendants thereafter each having fourteen days to deliver their replying submissions on costs.

2 . Submissions have now been received from all relevant parties. As the successful parties in the appeal, both the second and third defendants seek their costs.

3 . The plaintiffs' position is that the Court should make no order as to costs given what is described by the plaintiffs in their written submissions as the “unusual circumstances” surrounding the preliminary hearing on the Statute of Limitations issue which formed the basis of the High Court judgment under appeal. They also point to the...