Care Prime Holdings FC Ltd v Howth Estate Company

• Jurisdiction: Ireland
• Judge: Mr. Justice Allen
• Judgment Date: 06 July 2020
• Neutral Citation: [2020] IEHC 329
• Docket Number: [2018 No. 7052P.]
• Court: High Court
• Date: 06 July 2020

BETWEEN

CARE PRIME HOLDINGS FC LIMITED, FIRSTCARE IRELAND LIMITED

AND

BENEAVIN CONTRACTORS LIMITED

PLAINTIFFS

AND

HOWTH ESTATE COMPANY

AND

JULIAN GAISFORD-ST LAWRENCE

DEFENDANTS

[2020] IEHC 329

Allen J.

[2018 No. 7052P.]

THE HIGH COURT

Costs – Motion – Leave to amend statement of claim – Plaintiffs seeking the costs of the motion for leave to amend their statement of claim – Whether costs should follow the event

Facts: The High Court (Allen J), for the reasons given in a written judgment delivered on 12th June, 2020, acceded to a motion on behalf of the plaintiffs, Care Prime Holdings FC Ltd, Firstcare Ireland Ltd and Beneavin Contractors Ltd, for leave to amend their statement of claim. There was broad agreement as to the consequential orders, but the court was asked to rule on the question of the costs of the motion for leave to amend. The plaintiffs argued that they succeeded on the motion and that the costs should follow the event. Further, they argued that the costs of the application were significantly increased by the fact that it was strenuously defended. The defendants, Howth Estate Company and Mr Gaisford-St Lawrence, argued that they had incurred and would incur substantial additional costs by reason of the amendment which had been permitted. They submitted that the opposing party was in general entitled to the costs consequential on an amendment. Further, they submitted that if the plaintiffs did not succeed on the issues introduced by the amendment, the amendment, and the application for leave to amend, would be shown to have been unnecessary and that the costs of the amendment and the motion would have been effectively wasted. The defendants argued that the costs of the motion should be reserved to the trial judge who, it was said, would be in a better position to adjudicate on the question of costs.

Held by Allen J that the plaintiffs had succeeded on their application for leave to amend which, in view of the manner in which the motion was met, was an event. However, Allen J thought that the justice of the case required a deduction from the plaintiffs’ costs which should be paid by the defendants in respect of the costs that would have been incurred by the plaintiffs in any event. Allen J measured that deduction at 20%. In Allen J’s view, a just assessment of where the unnecessarily increased costs of the application should lie required that account should be taken of the costs that were or would have been necessarily and properly incurred and which, but for the manner in which the application was met, would likely have been awarded against the moving party. Applying the approach laid down in Veolia Water UK plc v Fingal County Council (No. 2) [2006] IEHC 240, Allen J held that this allowance was to be made by way of set-off. If, on the view Allen J had taken of the application, the defendants had recognised the motion to amend for what it was – an application for a simple amendment which would not give rise to any real prejudice – and had consented to it or acquiesced in it, they would probably have been allowed their costs of the motion. The defendants’ costs of answering the motion, however, would not have been the same as the plaintiff’s costs in mounting it. It seemed to Allen J that the justice of the case would be met by allowing a further deduction in respect of that element of the defendants’ costs by way of set-off of 10%.

Allen J held that the plaintiffs were entitled to recover from the defendants 70% of the costs of the motion.

Limited costs order made.

RULING of Mr. Justice Allen delivered on the 6th day of July, 2020

1 For the reasons given in a written judgment delivered electronically on 12th June, 2020 I acceded to a motion on behalf of the plaintiffs for leave to amend their statement of claim. Following an exchange of correspondence between the solicitors in the meantime there is broad agreement as to the consequential orders, but the court is asked to rule on the question of the costs of the motion for leave to amend.

2 The plaintiffs argue that they succeeded on the motion and that the costs should follow the event. Further, they argue that the costs of the application were significantly increased by the fact that it was strenuously defended.

3 The defendants argue that they have incurred and will incur substantial additional costs by reason of the amendment which has been permitted. They submit that the opposing party is in general entitled to the costs consequential on an amendment. Further, they submit that if the plaintiffs do not succeed on the issues introduced by the amendment, the amendment, and the application for leave to amend, will be shown to have been unnecessary and that the costs of the amendment and the motion will have been effectively wasted. The defendants argue that the costs of the motion should be reserved to the trial judge who, it is said, will be in a better position to adjudicate on the question of costs.

4 Order 99, r. 2(3) of the Rules of the Superior Courts (which was substituted by the Rules of the Superior Courts (Costs) 2019 (S.I. No. 584 of 2019 with effect from 3rd December, 2019 and superseded the previous 0. 99, r. 1(4A) which had been introduced in 2008) provides:-

“(3) The High Court, the Court of Appeal or the Supreme Court, upon determining any interlocutory application, shall make an award of costs save where it is not possible justly to adjudicate upon liability for costs on the basis of the interlocutory application.”

5 In ACC Bank plc v. Hanrahan [2014] 1 I.R. 1 Clarke J. (as he then was) having noted the introduction of O. 99, r. 1(4A) of the Rules of the...