Condron v Galway Holding Company Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice McDermott
• Judgment Date: 19 June 2018
• Neutral Citation: [2018] IEHC 387
• Docket Number: [2016 No. 3444 P.]
• Court: High Court
• Date: 19 June 2018

BETWEEN

THOMAS CONDRON

PLAINTIFF

AND

GALWAY HOLDING COMPANY LIMITED

AND

DANMAR CONTRUCTION LIMITED

AND

STEPHEN TRACEY

AND

MAUREEN TRACEY

DEFENDANTS

[2018] IEHC 387

[2016 No. 3444 P.]

THE HIGH COURT

Costs – Trespass – Damages – Plaintiff seeking costs – Whether the plaintiff's claim should have been brought in the Circuit Court

Facts: The plaintiff, Mr Condron, succeeded in his action for injunctive relief and damages against the defendants, Galway Holding Company Ltd, Danmar Construction Ltd, Mr Tracey and Ms Tracey, for trespass upon a small track of land on his premises at Malahide, County Dublin. The court assessed damages in the amount of €10,000.00. The applicant applied to the High Court seeking the costs of the proceedings, including the costs of a counterclaim brought by the defendants for substantial damages which they claimed against the plaintiff. The plaintiff claimed that costs must follow the event in accordance with O. 99 of the Rules of the Superior Courts. The defendants submitted that the plaintiff, if entitled to costs, was only entitled to the costs appropriate to the level of damages awarded which was well within the jurisdiction of the Circuit Court where it should have been initiated and maintained. Therefore, it was submitted that pursuant to s. 17 of the Courts Act 1981, the plaintiff's claim should more appropriately have been brought in the Circuit Court. The defendants sought an order for costs in their favour under s.17(5) because the plaintiff did not bring these proceedings in the lowest court having jurisdiction to make an order granting damages in the amount of €10,000.00 for trespass, calculated on the basis set out in the subsection.

Held by McDermott J that, on the basis of Permanent TSB v Langan and the Attorney General [2017] IESC 71, this action ought to have been instituted in the Circuit Court based upon the nature of the claim, the issues arising in relation to the margin of land the subject matter of the proceedings and the amount of damages ultimately awarded.

McDermott J held that the plaintiff was entitled to the costs of the proceedings on the basis of the Circuit Court scale with a certificate for senior counsel.

Application granted.

Judgment of Mr. Justice McDermott delivered on the 19th day of June, 2018

1 The plaintiff has succeeded in his action for injunctive relief and damages against the defendants for trespass upon a small track of land on his premises at Malahide, County Dublin. The area consisted of a grass margin beside the public highway. The court determined that in constructing a footpath on the grass margin the defendants had committed an act of trespass for which they were liable in damages. The court assessed damages in the amount of €10,000.00. The applicant now seeks the costs of the proceedings and these would include the costs of a counterclaim brought by the defendants for substantial damages which they claim against the plaintiff.

2 The plaintiff claims that costs must follow the event in accordance with O. 99 of the Rules of the Superior Courts. The defendants submit that the plaintiff, if entitled to costs, is only entitled to the costs appropriate to the level of damages awarded which was well within the jurisdiction of the Circuit Court where it should have been initiated and maintained. Therefore, it is submitted that pursuant to s. 17 of the Courts Act 1981, as substituted by s. 14 of the Courts Act 1991 and amended by s. 19 of the Courts and Civil Law (Miscellaneous Provisions) Act 2013, the plaintiff's claim should more appropriately have been brought in the Circuit Court.

3 Section 17 provides for a limitation on the amount of plaintiff's costs in certain proceedings:-

'17(1) Where an order is made by a court in favour of the plaintiff ... in any proceedings (other than an action specified in subs. (2) and (3) of this section) and the court is not the lowest court having jurisdiction to make an order granting the relief the subject of the order, the plaintiff shall not be entitled to recover more costs than he would have been entitled to recover if the proceedings had been commenced...