Corrigan v Kevin P Kilrane & Company Solicitors

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Ms. Justice Faherty
• Judgment Date: 18 November 2020
• Neutral Citation: [2020] IECA 315
• Docket Number: Appeal Number: 2017/571
• Date: 18 November 2020

BETWEEN/

SEAN CORRIGAN

PLAINTIFF/APPELLANT

-AND-

KEVIN P. KILRANE AND COMPANY SOLICITORS

DEFENDANT/RESPONDENT

[2020] IECA 315

Edwards J.

Faherty J.

Murray J.

Appeal Number: 2017/571

THE COURT OF APPEAL

Costs – Libel – Lay litigant – Appellant seeking costs – Whether the appellant was entitled to his costs in the appeal

Facts: The appellant, Mr Corrigan, the successful party in an appeal to the Court of Appeal, sought his costs of having to defend in the High Court the notice of motion of the respondent, Kevin P. Kilrane and Company Solicitors, to have his defamation proceedings struck out and he sought the costs of the appeal. He submitted that the task of the Court in the appeal was to find whether the words published by the respondent were capable of bearing any of the meanings ascribed to them in the appellant’s proceedings. He submitted that his appeal was successful in this respect. It was submitted that the appeal was also successful in that the Court found that the trial judge erred in considering whether the respondent’s email attracted the defence of qualified privilege in circumstances where malice was pleaded by the appellant and where the appellant may wish to seek discovery to assist in the defence of a plea of qualified privilege. Furthermore, the Court held that the trial judge had no further function save to determine whether the impugned words were reasonably capable of bearing a meaning ascribed by the appellant. The respondent’s application was to have the costs of both the High Court motion and the appeal reserved to the trial of the action. The respondent further submitted that the appellant, as a lay litigant, was not entitled to an order for his costs and that any claim he had should be restricted to his vouched expenses.

Held by Faherty J that the salient issue was that the appellant has been successful in reviving (albeit on a very much restricted basis) a libel action that was struck out in its entirety in the court below. Accordingly, in the exercise of its discretion, the view of the Court was that the appellant was entitled to his costs in the appeal. Faherty J held that these costs were limited to his reasonable outlay given that he was at all material times a lay litigant.

Faherty J further proposed to deal with the costs award in the High Court by vacating same and replacing it with a no costs order.

Costs to appellant.

Ruling of Ms. Justice Faherty on Costs delivered the 18 ^th day of November 2020

1 Judgment (hereinafter “the principal judgment”) in this matter was delivered by the Court on 8 April 2020. The appeal was allowed. Both parties have delivered submissions on the issue of costs.

2 In summary, the appellant, the successful party in the appeal, seeks his costs of having to defend in the High Court the respondent's notice of motion to have his defamation proceedings struck out and he seeks the costs of the appeal. He submits that the task of the Court in the appeal was to find whether the words published by the respondent were capable of bearing any of the meanings ascribed to them in the appellant's proceedings. He submits that his appeal was successful in this respect. It is submitted that the appeal was also successful in that the Court found that the trial judge erred in considering whether the respondent's email attracted the defence of qualified privilege in circumstances where malice was pleaded by the appellant and where the appellant may wish to seek discovery to assist in the defence of a plea of qualified privilege. Furthermore, the Court held that the trial judge had no further function save to determine whether the impugned words were reasonably capable of bearing a meaning ascribed by the appellant.

3 The respondent's application is to have the costs of both the High Court motion and the appeal reserved to the trial of the action. The respondent further submits that the appellant, as a lay litigant, is not entitled to an order for his costs and that any claim he has should be restricted to his vouched expenses.

4 The respondent's submissions can be summarised as follows:

5 Albeit that the Court held for the appellant on the first issue in the appeal, namely that on the basis that there was a conflict of evidence the trial judge should have taken the plaintiff's argument at its height, the Court nevertheless concluded that this was “not entirely dispositive of whether the appellant should succeed in this appeal.” It is submitted that the appropriate forum in which to make a determination on such conflict is the trial itself and for that reason the question of the costs of the motion and the appeal should be reserved to the trial of the action.

6 The second issue in the appeal was whether the trial judge erred in finding that the statements in the email of 25 November 2015 were not reasonably capable of being found to have a defamatory meaning. This Court did not agree that the words in the impugned email were reasonably capable of bearing all the meanings ascribed to them by the appellant but found that the words were capable of...