Best v Ghose
| Jurisdiction | Ireland |
| Judge | Ms. Justice Baker |
| Judgment Date | 05 August 2022 |
| Neutral Citation | [2022] IEHC 507 |
| Court | High Court |
| Docket Number | 2016 No. 2326 S |
[2022] IEHC 507
2016 No. 2326 S
THE HIGH COURT
(COSTS)
COSTS RULING of Ms. Justice Baker delivered on the 5 th August 2022
. This ruling concerns the costs of proceedings in which the substantive judgment was delivered on 27 June 2018 ( [2018] IEHC 376), and the supplemental judgment delivered on 9 June 2020 ( [2020] IEHC 355).
. Mr. Kenneth Best is a Ward of Court, and the proceedings to which this ruling relates were commenced by his mother and sister, the joint Committee of his Person and Estate (“the Committee”). The Committee seek an order for the payment for costs of the proceedings. In the circumstances, an issue arises as to whether they should be entitled to all of the costs, having regard to at least some aspects of the final outcome of the hearing. The further question also arises of whether orders for costs should be made against those defendants against whom no order was made for the reasons in the principal judgment.
. In the principal judgment it was determined that Bloxham Stockbrokers Partnership, now in liquidation, and of which the first to fifteenth named defendants were, at some time during the time the fund of the ward was managed by the firm, partners, owed to Mr. Best a duty to account in respect of the management of his funds (“the Fund”) lodged in court. Some of the Bloxham partners had retired by the time the proceedings came on for hearing, and in some cases, they retired many years ago. They were sued because the firm traded as a partnership.
. Where appropriate in the course of the principal judgment and the supplemental judgment I used the term “Bloxham” and its cognates to signify the firm where it was unnecessary to identify any difference in approach to those defendants or when I was then unable to make a differentiation. I propose to use that nomination here, save when I expressly do otherwise later in this ruling. The argument of the plaintiffs that I had, by using that term in the earlier judgments, intended, or should be seen as having intended, to preclude the argument and decision now made on the allocation of costs is a misreading of the meaning and context.
. When the principal judgment was delivered no argument had been directed towards the distribution of the liability for costs as between the fifteen natural persons named as defendants. It would have been premature and pointless to have engaged that question until a determination was given regarding the rights of the plaintiffs, and to whom the obligations to the plaintiffs were owed.
. In the principal judgment I determined that Bloxham did owe a duty to account, further hearings were had to deal with the assertion that an account had been made in the past and as such that the duty had not been breached. Thereafter further queries were raised, and further hearings had in order to review documentation requested of the Office of Wards of Court (“the Office”), and documentation held by the liquidator. In all, the matter came back for four further hearings, some of them short and some involving the hearing of oral evidence from the experts.
. A further judgment was given on 9 June 2020 (“the supplemental judgment”) following the evidence from the experts.
. As is apparent from an examination of the papers in this case, the account ultimately furnished in respect of the management of the estate of the ward is detailed, lengthy and complex. The preparation and examination of the account required an input from professional accountants and the engagement of counsel, solicitor, and of the court with those details.
. The starting point on liability for costs in litigation was, until October 2019, O. 99, r. 1(4) of the Rules of the Superior Courts, that costs “follow the event”. The court retains discretion and may depart from these principles in the light of the particular nature and circumstances of the case and the litigation, the number and extent of the issues raised and whether it was reasonable for the parties to raise them
. It does not seem to me that it is necessary to consider whether any materially different approach is warranted by reason of the coming into operation of Part 11 of the Legal Services Regulation Act 2015, and whether the statutory regime has any impact on the allocation of costs in this litigation which concluded before the operative date of the Act, as no difference in approach or likely difference in result is apparent or has been canvassed.
. The leading case regarding the manner by which to characterise an “event” is that of Clarke J. (as he then was) in Veolia Water UK plc v. Fingal CC (No. 2) [2007] 2 I.R. 81, considered in MD v. ND [2015] IESC 66, [2016] 2 I.R. 438. Clarke J. identified an approach to the ascertainment of an “event” that required in some instances that a court would examine the course of the hearing and the issues raised with a view to a consideration of whether a party who has succeeded in litigation can be said to have succeeded fully.
. These proceedings were brought by summary summons in the High Court and came for hearing before me grounded on a notice of motion seeking various reliefs, but primarily an order that an account be furnished of the dealings in the funds of the ward. It became necessary to determine the logically prior question of whether a duty was owed by Bloxham to account in respect of its management of the funds, and thereafter to consider whether, as asserted by some of the defendants, such an account had already been furnished, and depending on the answer to these questions, whether the documentation that ultimately emerged from this process was sufficient to meet the obligation.
. Thus the primary question arising required a consideration of the case law regarding the duty to account, and whether the relationship was one akin to a fiduciary or trust relationship from which that duty has emerged in the authorities. The ultimate decision was that a duty to account did exist, and that the relationship between Bloxham and the ward, and its duty to manage the funds of the ward, had sufficient indicia of the fiduciary duty, as recognised in the authorities, to require that such an account be furnished.
. To that extent the plaintiffs succeeded and obtained an order and declaration that an account be furnished.
. The proceedings to that point are not ones in which it could be said that there were a number of events, or a number of issues raised in the proceedings as commenced or in the legal issues canvassed in which the plaintiffs did not succeed. The plaintiffs sought an order for an account, that required a consideration of the legal principles involved, and the plaintiffs succeeded in obtaining that declaration and order.
. I accept that in the course of the subsequent hearings the first-named defendant, Mr. Pramit Ghose, through counsel, indicated his willingness to assist in whatever way he could, but he maintained the defence that he did not owe an obligation to account. Mr. Ghose, in fact, offered considerable professional assistance in the analysis of the documentation and books after the principal judgment was delivered, and his professional skill and courtesy to the court in the course of the proceedings were of great assistance. Nonetheless the question here is liability for costs of litigation and the event giving rise to the making of a costs order against Mr. Ghose and the other defendants, and for the later parts of the case where he was the sole remaining defendant, arise in the context of adversarial litigation which he must be seen to have lost.
. Put another way, the fact that by the principal judgment I found that a duty to account did exist means that the defendants cannot be said to have succeeded. The later hearings proceeded on the basis that an account was being assembled and is to be seen as performance of an obligation arising from a duty which had been found to exist. As became quite apparent in the course of the subsequent hearings there was a material difference between having documents, including financial statements, and the rendering of an account in compliance with the order.
. In those circumstances it seems to me that the plaintiffs are entitled to their costs of the proceedings which includes the costs of the pleadings, submissions, and the hearing on the substantive case leading up to the delivery of the principal judgment and order. The issue of whether a duty to account was owed was contested and the plaintiffs had made attempts in the months leading up to the institution of proceedings to secure an acknowledgment of the existence of the duty.
. Some of the defendants succeeded in obtaining an order that no order be made against them, and I deal later in this ruling with individual defendants, the salient fact at this point in my consideration is that the partnership defendants (the first to fifteenth-named defendants) in the proceedings, some of whom entered a memorandum of appearance and were represented by solicitor and counsel, did have opportunity to concede the entitlement, and thus obviate the need for the litigation against them. Insofar as they did not, they must be held liable for the costs of the proceedings, subject to the following.
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Best v Ghose
...as Bloxham Stockbrokers Partnership, Bloxham Stockbrokers Partnership (In Liquidation) and Northern Trust (Ireland) Limited Defendants [2022] IEHC 507 2016 No. 2326 S THE HIGH COURT (COSTS) COSTS RULING of Ms. Justice Baker delivered on the 5 th August 2022 1 . This ruling concerns the cost......