Ciara Gannon Maguire v Eileen O'Callaghan
| Jurisdiction | Ireland |
| Judge | Ms. Justice Power |
| Judgment Date | 04 March 2021 |
| Neutral Citation | [2021] IECA 61 |
| Docket Number | Record Number: 2019/400 |
| Court | Court of Appeal (Ireland) |
| Date | 04 March 2021 |
and
[2021] IECA 61
Faherty J.
Ní Raifeartaigh J.
Power J.
Record Number: 2019/400
THE COURT OF APPEAL
Costs – Preliminary issue – Limitations – Respondent seeking costs – Whether costs should follow the event
Facts: The High Court (Noonan J) heard and determined the application of the respondent, Ms O’Callaghan, for the trial of a preliminary issue, namely, whether the claim of the appellant, Ms Maguire, was statute barred by reason of s. 9(2)(b) of the Civil Liability Act 1961. The appellant’s reply was that if her claim was so statute barred, then s. 9(2)(b) of the Act was repugnant to the Constitution. On 28 June 2019, Noonan J delivered judgment and ruled that the interests of justice favoured granting the respondent’s application. The High Court Order directed the trial of two preliminary issues which, in the principal judgment, the Court of Appeal (Power J) referred to as ‘the limitations issue’ and ‘the constitutional issue’. The Court of Appeal delivered its judgment on 6 October 2020 ([2020] IECA 273). The appeal was dismissed, and the order of the High Court was upheld. The question of costs was adjourned. The parties were permitted to deliver written submissions. The respondent claimed that she had been ‘entirely successful’ in defending the appeal and submitted that she was, therefore, entitled to an award of costs, including the costs of defending an application for a stay on the High Court order pending the appeal, costs in that application having been reserved by the Court of Appeal on 1 November 2019. The appellant argued that costs should be reserved to the trial judge. She contended that the taxed costs of the High Court and Court of Appeal would wholly undermine any benefit from her medical negligence claim. She also contended that the application for the trial of a preliminary issue before the High Court and on appeal had become, in reality, a hearing as to how best the litigation in question could be ‘case managed’. The authors Delany and McGrath, she pointed out, had observed that the costs of case management hearings are often dealt with by being made ‘costs in the cause’: Delany and McGrath on Civil Procedure (4th ed., 2018) paragraph 24–85 citing Cork Plastics (Manufacturing) v Ineos Compounds UK Ltd [2007] IEHC 247.
Held by Power J that she did not consider that the Court of Appeal’s judgment had filled any alleged or perceived lacuna in the relevant jurisprudence on the point of principle that was raised by the appellant. She found that the Court confirmed existing case law to the effect that the limitations issue and the constitutional issue were discrete issues and were susceptible to determination by way of a trial of a preliminary issue. The appeal did not, in her view, have any ‘added degree of procedural complexity’ such as would warrant a departure from the general principle on costs, whether as reflected under the former or current framework. Power J held that that the respondent was ‘entirely successful’ in defending the appeal and was ‘entitled’ to her costs. Power J was satisfied that an award of costs should be made in her favour and that there were no circumstances such as would alter her general entitlement to recover the costs she had incurred in defending the appeal.
Power J held that she would make the following orders: (i) an order refusing the reliefs sought in the notice of appeal dated 21 August 2019 and affirming the order of Noonan J dated 28 June 2019; and (ii) an order directing that the appellant pay the respondent’s costs in the appeal, including the costs of the stay application which were reserved on 1 November 2019, all outlays and disbursements, to be adjudicated in default of agreement.
Costs awarded to respondent.
JUDGMENT of Ms. Justice Power delivered on the 4 th day of March 2021
. The issue of principle in this appeal was whether there exists a bar to a court ordering the trial of a preliminary issue in circumstances where the constitutional validity of legislation is to be raised in the proceedings. Where a trial court will be called upon to consider the constitutional principle of avoidance of declarations of invalidity, the question that fell to be addressed by this Court was whether this was a matter which must be considered exclusively within the context of a unitary trial.
. In the High Court, Noonan J. heard and determined the respondent's application for the trial of a preliminary issue, namely, whether the appellant's claim was statute barred by reason of s. 9(2)(b) of the Civil Liability Act 1961 (hereinafter ‘the Act’). The appellant's reply was that if her claim was so statute barred, then s. 9(2)(b) of the Act was repugnant to the Constitution. On 28 June 2019, Noonan J. delivered judgment and ruled that the interests of justice favoured granting the respondent's application. The High Court Order directed the trial of two preliminary issues which, in the principal judgment, I referred to as ‘the limitations issue’ and ‘the constitutional issue’.
. This Court delivered its judgment on 6 October 2020 (see [2020] IECA 273). The appeal was dismissed, and the Order of the High Court was upheld.
. The question of costs was adjourned. The parties were permitted to deliver written submissions. The respondent and the appellant filed submissions dated 2 November 2020. The Attorney General, by letter dated 10 November 2020, adopted a neutral position on costs but confirmed that he was not seeking any costs order in his favour. The appellant, thereafter, filed a reply dated 24 November 2020 to the respondent's submission on costs. Finally, on 25 November 2020, the respondent filed a reply to the appellant's submission on costs.
. The respondent claims that she has been ‘ entirely successful’ in defending the appeal and submits that she is, therefore, entitled to an award of costs, including, the costs of defending an application for a stay on the High Court order pending the appeal, costs in that application having been reserved by this Court on 1 November 2019.
. In support of her claim, the respondent points out that the appellant has failed on all grounds set out in her appeal. She submits that this Court's judgment, effectively, stated the law as it stood, namely, that there exists established precedent to support the view that both a limitations issue and a constitutional issue may be determined by way of the procedure permitted under Order 25 RSC. The answer to the question of whether this was an appropriate case in which to order the trial of a preliminary issue was clear cut, particularly in circumstances where the constitutionality of that provision has already been upheld in Moynihan v. Greensmyth [1977] I.R. 55.
. The respondent submits that this Court found that the appellant's argument in relation to ‘the insurance issue’ (which was alleged to have rendered the limitations issue moot) was one that could be raised before the trial judge hearing the preliminary issues. In her view, this Court had found that the interlocutory order of Noonan J. was one made in the course of the management of litigation and that there was nothing in his judgment to suggest that his discretion had been exercised in such a manner as to imperil the administration of justice. She claims that not only has she been ‘entirely successful’ in the appeal but that it was not reasonable for the appellant to seek to overturn the High Court's ruling in the face of a weight of authorities against her. She, therefore, seeks her costs with all outlays and disbursements to be adjudicated in default of agreement.
. The appellant argues that costs should be reserved to the trial judge. The taxed costs of the High Court and Court of Appeal would wholly undermine any benefit from her medical negligence claim. She also contends that the application for the trial of a preliminary issue before the High Court and on appeal had become, in reality, a hearing as to how best the litigation in question could be ‘case managed’. The learned authors Delany and McGrath, she points out, have observed that the costs of case management hearings are often dealt with by being made ‘costs in the cause’. 1
. In the appellant's view, the principal judgment ‘ materially alters’ the directions that will govern the trial of the preliminary issues in ‘ a way that differs significantly from the High Court judgment and order’. When compared to her situation following the High Court judgment, she contends that this Court's judgment now places her in a ‘ more advantageous’ position in several respects.
. First, on the limitations issue, the appellant argues that this Court's assessment reserved to the trial judge the prospect of limited evidence being adduced should that be considered necessary. Neither this, she claims, nor the Attorney General's awaited replies to O. 60, rr. 1 and 2 notices were ‘ contemplated’ in the judgment of the High Court. Second, on the constitutional issue, the appellant claims that this Court's judgment leaves it to the trial judge to determine whether evidence is required beyond that set out in the agreed facts. Moreover, the confirmed participation of the Attorney General is, in the appellant's view, ‘ significant’ and ‘ alters radically’ the pleadings before the High Court. She submits that the participation of the Attorney General has been ‘ determined’ in a manner that is ‘ wholly advantageous’ to the appellant. Finally, she claims that this Court has addressed (at para. 120 of its judgment) in a ‘ common sense manner’ the ‘ stark evidential deficit’ contemplated by the absence of the respondent from the trial of the constitutional issue. The...
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