Bupa Ireland Ltd & Bupa Insurance v Health Insurance Authority and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Cooke
• Judgment Date: 30 April 2013
• Neutral Citation: [2013] IEHC 177
• Court: High Court
• Date: 30 April 2013

Bupa Ireland Ltd & Bupa Insurance v Health Insurance Authority & Ors

COMPETITION

MR JUSTICE COOKE

APPROVED TEXT

BETWEEN

BUPA IRELAND LIMITED AND BUPA INSURANCE

APPLICANTS

AND

THE HEALTH INSURANCE AUTHORITY, THE MINISTER FOR HEALTH AND CHILDREN, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

[2013] IEHC 177

[No. 532 J.R./2005]

THE HIGH COURT

Litigation - Civil procedure - Claim for damages - Costs - Remittal - Discretion of the court - Rules of the Superior Court - Public interest - Unsatisfactory litigation

Facts: This matter concerned an application for an order for costs. On the 7th March 2013, judgment was delivered against the applicants on the basis that the claim for damages could not be maintained. The original judgment in the case had been delivered in the High Court on the 23rd November 2006, but was remitted back to the High Court to be tried again following a successful appeal to the Supreme Court on the 16th July 2008. The cost order sought was to cover the costs incurred following the remittal. The applicants argued that they should in fact be awarded at least part of their costs. In the alternative, it was argued that any order for costs in favour of the respondents should be reduced to take account of a number of particular issues upon which the applicant succeeded.

Held by Cooke J. that the award of costs was at the discretion of the court pursuant to Order 99, r. 1(1) of the Rules of the Superior Courts. It was accepted that the general rule was that costs should follow the event although in non-jury matters, such as the present, Order 99, r. 1(4) pointed out that "the costs of every issue of fact or law raised upon a claim or counterclaim shall, unless otherwise ordered, follow the event". Where a party had not succeeded in its claim (or part thereof), it would be for that party to demonstrate to the court why costs should not be awarded against them.

It was further held that case law indicated that a successful party could have an order for costs in their favour reduced if it was shown that aspects of the litigation were conducted unsatisfactorily or where they had needlessly added to the duration and complexity, and therefore the cost, of proceedings. Alternatively, there may be a reduction in an order for costs to take account of a distinct step of proceedings that contributed significantly to the costs of the case as a whole and which went against the successful party. The court also had the option to order parties to bear their own costs or, in an exceptional case where it was in the public interest to do so, make an award for costs in favour of the losing party.

In the present case, it was noted that the court was only asked to deal with the costs following the remittal from the Supreme Court. No issue of public interest arose that meant costs should be in the applicants” favour. Similarly, no aspect of the respondents” litigation could be described as unsatisfactory. However, it was clear that a significant issue in proceedings had went against the respondents, namely whether the applicants were allowed to refer and reopen the issues that were heard before the High Court at first instance, instead of them being retried following remittal. On that basis, it was deemed to be appropriate to grant costs in favour of the respondent limited to 75%.

Order as to costs directed accordingly.

RSC O.99 r1(1)

RSC O.99 r1(3)

RSC O.99 r1(4)

GRIMES v PUNCHESTOWN DEV CO LTD 2002 4 IR 515 2002/12/2943 2002 IESC 79

FYFFES PLC v DCC PLC & ORS 2009 2 IR 417 2006/25/5111 2006 IEHC 32

CORK CO COUNCIL v SHACKLETON & ORS 2011 1 IR 443 2008 1 ILRM 185 2007/11/2182 2007 IEHC 241

JOHN RONAN & SONS & ORS v CLEAN BUILD LTD & ORS UNREP CLARKE 21.12.2011 2011/28/7691 2011 IEHC 499

ACC BANK PLC v JOHNSTON T/A BRIAN JOHNSTON & CO SOLICITORS UNREP CLARKE 24.10.2011 2011/2/349 2011 IEHC 500

MCEVOY v MEATH CO COUNCIL 2003 1 IR 208 2003 1 ILRM 431 2003/40/9678 2003 IEHC 31

DUNNE v MIN FOR ENVIRONMENT & DUN LAOGHAIRE-RATHDOWN CO COUNCIL 2008 2 IR 775 2007/16/3368 2007 IESC 60

1 RULING of Mr. Justice Cooke delivered the 30th day of April 2013

2 1. On the 7 ^th March, 2013, the Court delivered its judgment on the preliminary issues which had been directed to be tried in relation to the liability of the respondents (in effect the second named respondent) for damages and the quantification of any such damages arising from the remittal of those issues by the Supreme Court on foot of its appeal judgment of the 16 ^th July, 2008, which set aside the original High Court judgment of McKechnie J. of the 23 ^rd November, 2006.

3 2. In its judgment of the 7 ^th March, 2013, this Court found, essentially for the reasons summarised at para. 134 of that judgment, that the applicants' claim for damages could not be maintained.

4 3. The respondents now apply for an order for their costs against the applicants. The applicants not only resist that application but apply to be awarded their costs, or at least part of their costs, against the second named respondent. In the alternative they argue that any order for costs in favour of the respondents ought to be reduced to take account of particular issues upon which the applicants succeeded.

5 4. The costs in question are the costs incurred since the remittal of the issues to the High Court being principally those incurred by the parties on the various procedural applications, the delivery of pleadings on the issues and the hearing of this case before the Court for seven days in January/February, 2012. All costs previously incurred in the proceedings, both in the High Court and in the Supreme Court have been dealt with in the order of the Supreme Court of 17th December, 2008, which awarded all costs of the litigation in both the High Court and the Supreme Court up that point in favour of the applicants. In exercising its discretion on the award of costs in the application now before it, this Court is therefore concerned only with considerations relevant to the trial and outcome of the liability issue and not with any of the variety of the considerations relevant to the earlier course of the judicial review proceedings and the outcome of the case in the Supreme Court. Those considerations have effectively been met and satisfied by the determination of the Supreme Court.

6 5. There is no dispute as to the starting point and the basic rules for consideration of these issues. Order 99, r. 1(1) of the Rules of the Superior Courts provides the primary provision, namely, that "The costs of and incidental to every proceeding in the superior courts are to be in the discretion of those Courts respectively".

7 6. The second basic rule is that provided for jury and non jury cases in subrules (3) and (4) to the effect that costs are to follow the event. It is to be noted, however, that under subrule (3) the language used is that: "The costs of every action, question, and issue tried by a jury shall follow the event unless the Court, for special cause, to be mentioned in the order, shall otherwise direct". In non-jury matters, on the other hand, subrule (4) provides that: "The costs of every issue of fact or law raised upon a claim or counterclaim shall, unless otherwise ordered, follow the event". (Emphasis added.) This would seem to suggest that the issue of costs in non-jury proceedings is to be addressed with more particular regard to the distinct issues of law or fact within the proceedings, rather than by disposing of the costs of the action in their totality.

8 7. If it is clear as a basic rule that costs are to follow the event, it must also follow, obviously, that where any party who has not succeeded "on the event" seeks to resist the application of the primary rule, it is that party which bears the onus of demonstrating that the circumstances justify displacement of the primary rule. That is the position of the applicants before this Court.

9 8. In arguing that the primary rule should be displaced both to the extent that the applicants should recover an award for costs and, in the alternative, that the respondents should not recover their costs in their entirety, counsel for the applicants have relied upon a number of authorities:

10 Grimes v. Punchestown Developments Co. Limited [2002] 4 I.R. 515 ;

11 Fyffes plc v. DCC plc and Others [2006] IEHC 32 ;

12 Cork County Council v. Shackleton and Others [2011] 1 I.R. 443 and

13 John Ronan and Sons v. Cleanbuild Limited and Others [2011] IEHC 499 .

14 9. The essential principles which emerge from this case law have not been disputed between the parties on this application and it turns more upon the application of the principles to the particular factors relied upon on each side in this litigation, than upon identifying the primacy of any one of the ingredient principles. It may nevertheless be useful for the Court to indicate the essential points which it distils from the case law thus relied upon.

15 10. The appeal in the case of Grimes v. Punchestown Developments & Co. Limited concerned an unsuccessful applicant for an injunction to restrain a particular use of land by the respondent under the Local Government (Planning and Development) Act 1976. He had sought to appeal an order for costs awarded against him in the High Court upon the ground that it was only on the day before the hearing of the injunction application that the respondent had disclosed a prior use of the land for the same purpose. The Supreme Court upheld the High Court costs order on the basis that the High Court discretion had been correctly exercised by applying ,the normal rule. Denham J. (as she then was) pointed out:-

"The normal rule is that costs followed the event. However, there were circumstances when a court on the facts of a case could determine that the normal rule...