Chubb European Group SE v The Health Insurance Authority

• Jurisdiction: Ireland
• Judge: Mr. Justice Murray
• Judgment Date: 08 July 2020
• Neutral Citation: [2020] IECA 183
• Date: 08 July 2020
• Court: Court of Appeal (Ireland)
• Docket Number: Record Nos. 2019/185

BETWEEN:

CHUBB EUROPEAN GROUP SE

APPELLANT

-AND-

THE HEALTH INSURANCE AUTHORITY

RESPONDENT

[2020] IECA 183

Whelan J.

Power J.

Murray J.

Record Nos. 2019/185

2019/186

THE COURT OF APPEAL

CIVIL

Costs – Judicial review – Statutory application – Parties seeking costs – Whether the respondent was prima facie entitled to the costs of the judicial review proceedings

Facts: Proceedings arose from an enforcement notice served by the respondent, the Health Insurance Authority (HIA), pursuant s. 18B of the Health Insurance Act 1994 as amended. The first action comprised a statutory application brought by the appellant, Chubb European Group SE (Chubb), pursuant to s. 18C of the Act seeking the cancellation of the directions specified in that notice. The second proceedings sought judicial review of certain decisions of HIA relating to the notice. The High Court (Burns J) refused Chubb relief in both actions and ordered the costs of each against it. In its appeal in the statutory application, Chubb prevailed on one point and obtained cancellation of the direction in the enforcement notice. Chubb failed in its appeal in the judicial review proceedings. Both parties delivered submissions directed to the costs of each proceeding. Chubb said that having prevailed in the statutory application, it should recover its costs of those proceedings in both the Court of Appeal and the High Court. It said that in the judicial review proceedings, no order as to costs should be made. In that regard it noted comments in Murray J’s earlier judgment that in the absence of a clear determination as to the scope of an appeal under the relevant provisions of the Act, it was understandable that the judicial review proceedings would have been instituted. Chubb also said that it prevailed on some of the arguments advanced in those proceedings, and that in any event the overall costs of the litigation were not increased by those proceedings to any material extent. As regards the statutory application, HIA said that it should be entitled to all its costs of the High Court and to 75% of its costs in the Court of Appeal. It adopted this position on the basis that the argument on which Chubb prevailed in the Court of Appeal was not made in the Court below being instead a ‘recast’ version of an argument that was advanced there. HIA contended that it succeeded on ‘the core issues between the parties’. It relied upon features of Chubb’s conduct and of the arguments advanced by it which, HIA suggested, were relevant to the costs of the proceedings. HIA further said that it should be awarded the costs of the judicial review proceedings in both the High Court and the Court of Appeal on the basis that Chubb’s appeal in those proceedings was dismissed and that, as it contended, those proceedings ‘should never have been brought’.

Held by Murray J that, Chubb having obtained no relief in either the High Court, or on appeal, in the judicial review proceedings, HIA was prima facie entitled to the costs of those proceedings in their entirety under both the pre- and post-2015 regimes. Murray J held that while Chubb may have won the event in the narrow sense of obtaining relief which it could only have secured by bringing the proceedings, HIA prevailed on the issues which occupied the remaining 2/3rds of that time and cost. Murray J held that it should recover these. Murray J saw no reason not to apply a straightforward set-off and to order that HIA recover 1/3rd of its costs in both actions.

Murray J held that the appropriate order in respect of the costs of these proceedings was as follows: (a) HIA would recover as against Chubb all of the costs of the judicial review proceedings except the costs of the hearing of the appeal in those proceedings; (b) for the purposes of determining the costs of the High Court hearing of the judicial review proceedings, those proceedings should be treated as having lasted one and a half days; (c) the judicial review proceedings were so enmeshed with the statutory application that they were properly and fairly treated for the purposes of the hearing as a single appeal and HIA was entitled to recover the costs of the appeal of the judicial review proceedings excluding the hearing costs (including solicitor’s instruction fees and counsel’s brief fees) and comprising the costs attending response to the notice of appeal and legal submissions; (d) HIA should recover from Chubb one third of its costs of the High Court proceedings and of the appeal in the statutory application.

Costs awarded to respondent.

JUDGMENT of Mr. Justice Murray delivered on the 8 ^th day of July 2020

Context

1 This judgment is addressed to the proper allocation of the costs incurred before this Court and the High Court in two actions, the appeals in which were disposed of in a single judgment ( [2020] IECA 91). Both sets of proceedings arose from an enforcement notice served by the respondent (‘HIA’) pursuant s.18B of the Health Insurance Act 1994 as amended (‘the Act’). The first action ( 2017/185 MCA) comprised a statutory application brought by the appellant (‘Chubb’) pursuant to S.18C of the Act seeking the cancellation of the directions specified in that notice. The second proceedings ( 2017/353 JR) sought judicial review of certain decisions of HIA relating to the notice. The High Court (Burns J.) refused Chubb relief in both actions and ordered the costs of each against it. In its appeal in the statutory application, Chubb prevailed on one point and obtained cancellation of the direction in the enforcement notice. Chubb failed in its appeal in the judicial review proceedings.

2 Both parties have now delivered submissions directed to the costs of each proceeding. In summary, Chubb says that having prevailed in the statutory application, it should recover its costs of those proceedings in both this Court and the High Court. It says that in the judicial review proceedings, no order as to costs should be made. In that regard it notes comments in my earlier judgment that in the absence of a clear determination as to the scope of an appeal under the relevant provisions of the Act, it was understandable that the judicial review proceedings would have been instituted. Chubb also says that it prevailed on some of the arguments advanced in those proceedings, and that in any event the overall costs of the litigation were not increased by those proceedings to any material extent.

3 As regards the statutory application. HIA says that it should be entitled to all its costs of the High Court and to 75% of its costs in this Court. It adopts this position on the basis that (it says) the argument on which Chubb prevailed in this Court was not made in the Court below being instead a ‘recast’ version of an argument that was advanced there. HIA contends that it succeeded on ‘the core issues between the parties’. It relies upon features of Chubb's conduct and of the arguments advanced by it which, HIA suggests, are relevant to the costs of the proceedings. HIA further says that it should be awarded the costs of the judicial review proceedings in both the High Court and this Court on the basis that Chubb's appeal in those proceedings was dismissed and that, as it contends, those proceedings ‘should never have been brought’.

The applicable costs regime

4 When these proceedings were heard in the High Court, and at the time this appeal was initiated, the legal regime governing the awarding of costs was defined by the general discretion of the Court in connection with costs as it appeared in the former 0.99, r.l(1), the reference in 0.99, r. 1(3) to the costs of every ‘action, question and issue tried’ following the event, the obligation imposed upon this Court by 0.99, r.l(3A) in determining an appeal to have regard to the number and extent of the issues raised and whether it was reasonable for the parties to raise them, together with the direction in r.1(4) that the costs of every issue of fact or law raised on a claim or counterclaim should, unless otherwise ordered, ‘follow the event’. These various provisions fell to be applied in the light of the decision of Clarke J. (as he then was) in Veolia Water UK plc v. Fingal County Council (No.2) [2006] IEHC 240, [2007] 2 IR 81. as explained in MD v. ND [2015] IESC 66, [2016] 2 IR438 (‘ Veolia’ and ‘ MD’ respectively).

5 By the time the appeal was heard, the legislative basis for the awarding of costs had changed, now appearing across the provisions of ss.168 and 169 of the Legal Services and Regulation Act 2015 (‘the 2015 Act’) and a recast 0.99 introduced by the Rules of the Superior Courts (Costs) Order 2019 SI 584/2019. The relevant sections of the 2015 Act came into force on 7 October 2019 and the new provisions of 0.99 took effect from 3 December 2019. The appeal was heard on 17 December with the consequence - I assume – that most, if not all, of the costs thereof were already incurred when the recast 0.99 took effect.

6 Chubb refers in its submission only to the provisions of O. 99 as it stood before 3 December and to that extent relies exclusively on the pre-existing law. HIA presents its submissions in respect of the costs of both the High Court and this Court by reference to s.169 of the 2015 Act but, it would appear from its reference to 0.99, r.1(3A) and 1(4), on the basis of the pre-December 2019 Rules of Court. Neither party has explained why the regime upon which it relies applies to either or both of the costs in the High Court and this Court.

7 In an appropriate case an issue may arise as to when precisely the provisions of the 2015 Act are engaged in respect of (a) the costs of proceedings initiated before the legislation was brought into force, (b) the costs of a specific application to Court (including the trial hereof) pending at the time of the coming into effect of the legislation, (c) the costs of High Court proceedings heard and...