Bazsont Ltd T/A Starbucks (Liffey Valley) v BVK Highstreet Retail Liffey Property Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Woulfe
• Judgment Date: 07 April 2022
• Neutral Citation: [2022] IEHC 237
• Court: High Court
• Docket Number: High Court Record No. 2020/208 CA

In the Matter of the Landlord and Tenant (Amendment) Act 1980

Between

Bazsont Limited T/A Starbucks (Liffey Valley)

Plaintiff/Appellant

and

BVK Highstreet Retail Liffey Property Limited

Defendant/Respondent

[2022] IEHC 237

High Court Record No. 2020/208 CA

Circuit Court Record No. 2018/3274

THE HIGH COURT

Costs – Discovery – Costs in the cause – Appellant seeking costs – Whether an order making the costs of discovery costs in the cause was the most appropriate costs order

Facts: The High Court, on the 10th December, 2021, delivered a judgment allowing in part the appeal of the appellant, Bazsont Ltd, against an order of the Circuit Court and ordering discovery of one of two categories of documents sought, subject to an amendment to the wording of that category: [2021] IEHC 773. The appellant applied for the costs of their motion for discovery on appeal to the High Court, and in the Court below, in favour of the appellant. The application was contained in their written submissions on costs dated the 14th January, 2022. The respondent, BVK Highstreet Retail Liffey Property Ltd, opposed the appellant’s application for costs in their written submissions on costs dated the 28th January, 2022. The respondent submitted that an order making the costs of discovery “costs in the cause” was the most appropriate costs order, or without prejudice thereto, that it was open to the Court to reserve costs in circumstances where the extent of the appellant’s “victory” in relation to the one category of documents awarded was not yet ascertainable, pending the making of discovery. It was submitted in the alternative that, if the Court were minded to award costs in any amount to the appellant, such costs should be limited to the High Court (with the costs orders in the lower Courts vacated), such costs should be limited to a portion of the High Court costs to reflect the partial success, and there should be a stay on execution of any costs order pending determination of the proceedings.

Held by Woulfe J that, as regards the exercise of the Court’s discretion to award the costs of the appeal to the High Court, the starting point was the result of the appeal; the appeal was successful in obtaining discovery of one category of documents, albeit with amended wording, but was unsuccessful in obtaining discovery of the second category sought. Woulfe J noted that s. 168(2)(d) of the Legal Services Regulation Act 2015 expressly provides that where a party is partially successful in any proceedings, the Court may order that the unsuccessful party pay only the costs relating to the successful element of the proceedings. Woulfe J noted that in Corrigan v Kevin P. Kilrane & Company Solicitors [2020] IECA 315, the Court of Appeal held that such an order could be viewed as appropriate where the partially successful party has raised unmeritorious points, and it is clear that the raising of those points has materially increased the costs of the hearing. Woulfe J was of the opinion that the appellant did raise an unmeritorious point regarding one of the two categories of discovery sought, i.e. category 4, and that this materially increased the costs of the appeal hearing, given the separate nature of the two categories.

Woulfe J held that the most appropriate costs order was that the respondent pay one half of the appellant’s costs of the appeal to the High Court, such costs to be adjudicated upon by the Office of the Legal Costs Adjudicators in default of agreement between the parties. As regards the costs in the Court below, Woulfe J was satisfied that a similar order should be made, notwithstanding the additional complications regarding category 6. Woulfe J did not propose placing any stay on the execution of those costs orders.

Costs awarded to appellant.

RULING of Mr. Justice Woulfe as to Costs delivered on the 7th day of April, 2022

Introduction

1 This is the ruling of the Court in respect of the appellant's application for the costs of their motion for discovery on appeal to this Court, and in the Court below, in favour of the appellant. The application was contained in their written submissions on costs dated the 14th January, 2022.

2 The respondent opposes the appellant's application for costs, for the reasons set out in their written submissions on costs dated the 28th January, 2022. The respondent submits that an order making the costs of discovery “costs in the cause” is the most appropriate costs order, or without prejudice thereto, that it is open to the Court to reserve costs in circumstances where the extent of the appellant's “victory” in relation to the one category of documents awarded is not yet ascertainable, pending the making of discovery. It is submitted in the alternative that, if this Court were minded to award costs in any amount to the appellant, such costs should be limited to the High Court (with the costs orders in the lower Courts vacated); such costs should be limited to a portion of the High Court costs to reflect the partial success; and there should be a stay on...