Berrill and Others v Kenmare Property Finance DAC

• Jurisdiction: Ireland
• Judge: Mr. Justice Garrett Simons
• Judgment Date: 15 May 2023
• Neutral Citation: [2023] IEHC 385
• Court: High Court
• Docket Number: 2022 No. 112 CA

Between

John Berrill

Denis McCarthy

Jeremiah McCarthy

Plaintiffs

and

Kenmare Property Finance DAC

Defendant

[2023] IEHC 385

2022 No. 112 CA

THE HIGH COURT

CIRCUIT APPEAL

Appearances

The plaintiffs appeared as litigants in person

Eoin Martin for the defendant instructed by Maples and Calder (Ireland) LLP

JUDGMENT of Mr. Justice Garrett Simons delivered ex tempore on 15 May 2023

1 This court delivered a written judgment in this matter on 13 April 2023: Berrill v. Kenmare Property Finance DAC [2023] IEHC 174. In brief outline, this court refused an application, brought by way of motion, to have the proceedings dismissed on the basis that they were bound to fail and/or represent an abuse of process. That judgment contained, as is now standard practice, a provisional or indicative view in relation to costs and the parties were invited, if they wished to contend for a different form of costs order, to file written submissions.

2 The court received a written submission on behalf of the plaintiffs on 9 May 2023. There was a written submission filed on behalf of the defendant that, for various reasons, did not make it to the attention of the court, however, the court was given a copy this morning and has had an opportunity to read same. Both sides were agreed that the application for costs could be dealt with today on the basis of the written submissions and the oral submissions made by the parties.

3 The position in relation to the costs of an interlocutory application is dealt with under Order 99, rule 2(3) of the Rules of the Superior Courts (as recast). In brief outline, that rule indicates that the High Court, upon determining any interlocutory application, shall make an award of costs save where it is not possible justly to adjudicate upon the liability for costs on the basis of the interlocutory application. In other words, the default position is that the High Court, having dealt with an interlocutory application, should attempt to allocate those costs rather than leave them over by way of reserving them to the trial judge or, alternatively, by making them costs in the cause. The logic of that approach is explained by the judgment of the Supreme Court in ACC Bank plc v. Hanrahan [2014] IESC 40, [2014] 1 I.R. 1 (at paragraph 8). As I will come to in a moment, that judgment dealt with the previous version of Order 99. Clarke J. (as he then was) stated that the purpose of the new rule was to allow the costs to be dealt with by the judge hearing the interlocutory application.

“The reason for the introduction of that rule seems to me to be clear. While, historically, there had been a tendency to reserve the costs of most motions to the trial judge, a view has been taken that this can lead to injustice for, at least in very many cases, a judge who has heard a motion is in a better position than the trial judge to consider the justice of where the costs of that motion should lie. This will especially be so in cases where the trial court will not have to revisit the merits or otherwise of the precise issue that was raised by motion.”

4 Clarke J. then gives the example of the costs of an application for discovery.

5 As I have said, the form of rule that I am dealing with is slightly modified in that, following the enactment of the Legal Services Regulation Act 2015 and the commencement of its provisions on 7 October 2019, Order 99 was recast. There is a similar provision in relation to interlocutory costs but, relevantly, the rule also provides that the court is to have regard to the provisions of Section 169 of the Legal Services Regulation Act 2015 in dealing with costs.

“The High Court, in considering the awarding of the costs of any action or step in any proceedings, and the Supreme Court and Court of Appeal in considering the awarding of the costs of any appeal or step in any appeal, in respect of a claim or counterclaim, shall have regard to the matters set out in section 169(1) of the 2015 Act, where applicable.”

6 One of the factors expressly identified under Section...