Barlow v Minister for Communications and Others
| Jurisdiction | Ireland |
| Judge | Mr Justice John Edwards |
| Judgment Date | 31 July 2023 |
| Neutral Citation | [2023] IECA 193 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Record No: 2019/345 |
[2023] IECA 193
Edwards J.
Collins J.
Power J.
Record No: 2019/345
High Court Record No:2006/2687 P
THE COURT OF APPEAL
CIVIL
JUDGMENT of Mr Justice John Edwards delivered on the 31st of July 2023 .
. On the 21 st of July 2022, Edwards J. delivered a judgment (bearing neutral citation [2022] IECA 179) with which both Collins and Power JJ. concurred, on the substantive issues in this appeal (“the principal judgment”). The appeal was against a judgment of the High Court dated the 22 nd of March 2019 (delivered by Meenan J) and the Order arising therefrom on the 31 st of May 2019 (and perfected on the 26 th of June 2019), on foot of which the appellants' claims (as plaintiffs) against the respondents (as defendants) for injunctive relief (both prohibitory and mandatory), various declarations, and for damages under various headings were dismissed.
. The appellants were involved in the commercial fishing, harvesting and sale of ground or bottom mussels. Their claims for damages were substantially (although not exclusively) based upon alleged loss and damage suffered by them through the allegedly negligent mismanagement by the defendants their servants or agents, of stocks of ground or bottom mussel seed, a finite natural resource, within the territorial waters of the State.
. While the action as originally framed by the appellants had sought numerous reliefs other than, and in addition to, the primary claim ultimately pressed, i.e, the claim for damages for negligence and breach of duty arising from the respondents' alleged mismanagement of the seed mussel resource, the appeal against the High Court's dismissal was largely confined to contesting the High Court's dismissal of that aspect of their claims. Whilst it is true that the appeal also embraced a subsidiary claim alleging error on the High Court judge's part in failing to fashion a bespoke remedy for the appellants to allow for vindication of various of their constitutional rights, including the right to earn a livelihood, and property rights, said to have been breached by the respondents' mismanagement of the mussel seed resource, the issues around the claims for damages for negligence and breach of duty dominated the appeal.
. This Court ultimately dismissed the appellants' appeal on all grounds. In so far as the main controversy was concerned, while the Court disagreed with the High Court's assessment that the expert evidence adduced at trial had failed to sufficiently demonstrate mismanagement of the mussel seed resource, we considered that that did not go to the heart of the matter, and the appeal could not be disposed of on that basis alone, because ultimately we were in agreement with the High Court judge that in the circumstances obtaining in this case, the dealings between the parties did not give rise to a relationship of sufficient proximity to impute the duty of care being contended for.
. The respondents now seek their full costs of the appeal as against the appellants, contending in essence that they were entirely successful in the appeal, and that costs should follow the event.
. The appellants in turn oppose the respondents' application for costs, and in turn ask the Court to award them, on a discretionary basis, their costs against the respondents, or such proportion thereof as the Court may consider it appropriate to award, in the particular circumstances of the case.
. We were referred to both subsections (1) and (2) s.169 of the Legal Services Regulation Act, 2015 (“the Act of 2015), which provide:
“(1) A party who is entirely successful in civil proceedings is entitled to an award of costs against a party who is not successful in those proceedings, unless the court orders otherwise, having regard to the particular nature and circumstances of the case, and the conduct of the proceedings by the parties, including—
(a) conduct before and during the proceedings,
(b) whether it was reasonable for a party to raise, pursue or contest one or more issues in the proceedings,
(c) the manner in which the parties conducted all or any part of their cases,
(d) whether a successful party exaggerated his or her claim,
(e) whether a party made a payment into court and the date of that payment,
(f) whether a party made an offer to settle the matter the subject of the proceedings, and if so, the date, terms and circumstances of that offer, and
(g) where the parties were invited by the court to settle the claim (whether by mediation or otherwise) and the court considers that one or more than one of the parties was or were unreasonable in refusing to engage in the settlement discussions or in mediation.
(2) Where the court orders that a party who is entirely successful in civil proceedings is not entitled to an award of costs against a party who is not successful in those proceedings, it shall give reasons for that order.”
. At the outset, counsel for the appellants asserted that it cannot be said that the respondents were entirely successful in the appeal, in circumstances where this Court had rejected the High Court's assessment that the expert evidence adduced at trial had failed to sufficiently demonstrate mismanagement of the mussel seed resource. At paras. 85 and 194 of the principal judgment it was held that the High Court judge had failed to make clear that there was a very large measure of agreement between the experts on the issue of whether or not there had been mismanagement of the mussel seed resource, notwithstanding some relatively minor disagreements on what would have been the most appropriate way to have managed it. It was the shared view of the experts that the resource had been mismanaged, and the High Court judge had erred in forming a mistaken contrary overall impression. While it was true that the finding in the principal judgment that mismanagement had been demonstrated did not ultimately avail the appellants, because the Court had gone on to agree with the High Court's further conclusion that there was insufficient proximity of relationship between the parties to impute the duty of care being contended by the appellants, the Court had none the less rejected a significant part of the foundation underpinning the High Court's decision to dismiss.
. Counsel for the appellants also submitted (correctly) that while the principal judgment ultimately arrived at the same substantive conclusion as the High Court judge had arrived at, namely that no private law duty of care was owed by the respondents to the appellants in the circumstances of the case, the High Court's approach to the duty of care issue was criticised by this Court, as was its focus on the ownership of the resource.
. In the circumstances, counsel for the appellant submitted, the respondents had no entitlement to be awarded the costs of the appeal in reliance on s.169(1) of the Act of 2015.
. It was further argued that even if this Court were to conclude that the respondents had been entirely successful in resisting the appeal, we would be justified in exercising our discretion to order that the respondents ought not to be entitled to an award of any costs, or alternatively a full award of costs, against the appellants having regard to the particular nature and circumstances of the case, and the conduct of the proceedings by the parties.
. Our attention was drawn to s.169(1)(b) and it was submitted that it had been reasonable for the appellants to raise, pursue or contest one or more issues in the proceedings. The point was made that this had been a material factor which had led the High Court (whose costs order was not appealed) to award the appellants 25% of their taxed costs and 100% of the costs of the transcripts against the respondents: see the High Court's costs ruling at [2019] IEHC 417. It was submitted that it might be said that the appellants were less successful before the High Court than they were before this Court concerning the merits of their claims, and that this Court should, adopting a similar approach to costs to that adopted by the High Court, also regard it as having been reasonable for the appellants to raise, pursue or contest one or more issues on the appeal.
. Counsel for the appellants, in referencing the High Court's costs ruling, drew attention to Meenan J's citation of cases such as Collins v. the Minister for Finance [2014] IEHC 79 and Dunne v Minister for the Environment, Heritage and Local Government & Ors [2008] 2 IR 775 as setting out the principles that should be applied in circumstances where, though unsuccessful, parties are awarded their costs. She identified with specificity that there are a category of cases involving constitutional challenges which raise issues of special and general public importance which are not brought for personal advantage. While the instant case was accepted as not falling into this category, Meenan J had gone on to say that there were yet other claims for commercial loss which did, and, in reaching its decision, the Court applied well-established principles of law. There are, however, other categories of cases in which special circumstances can arise, citing as an example Kerins v. McGuinness & Ors [2017] IEHC 217 where, notwithstanding that the plaintiff had lost her action, the Divisional High Court had nonetheless awarded her two-thirds of her taxed costs, being satisfied, firstly, that the...
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