Dardis v Poplovka

• Jurisdiction: Ireland
• Judge: Mr. Justice Barr
• Judgment Date: 28 April 2017
• Neutral Citation: [2017] IEHC 249
• Court: High Court
• Docket Number: [2012 No. 12484 P.]
• Date: 28 April 2017

[2017] IEHC 249

THE HIGH COURT

Barr J.

[2012 No. 12484 P.]

BETWEEN

MICHAEL DARDIS

PLAINTIFF

AND

SERGEJS POPLOVKA

DEFENDANT

Practice & Procedures – O.99, r. 1 and r. 4 of the Rules of the Superior Courts – Award of costs – Departure from normal rule – Delay in hearing of matter – Unrealistic issues – Expenses on resources

Facts: The plaintiff sought an order for costs against the defendant. The plaintiff claimed that he was successful in obtaining the desired relief against the defendant in relation to the injuries suffered in a road traffic accident and therefore, the plaintiff was entitled for his costs as a normal rule. The defendant, however, asserted that the plaintiff was unsuccessful on his substantial loss of earnings claim in relation to which the defendant had expended money and time, and thus, a departure from normal rule should have followed.

Mr. Justice Barr held that the plaintiff was entitled to the costs of the discovery motion and the costs for six days' hearing before the High Court. The Court held that the plaintiff was not entitled for the costs in relation to the loss of earnings claim as it was not a realistic and honest claim. The Court held that the defendant was entitled for the costs in relation to the extended two days of hearing pertaining to the loss of earnings claim and the fee paid by the defendant to his accountant. The Court held that normally, a successful party was entitled to its costs and that party would still recover its costs notwithstanding the fact that the party had failed in one or more issues. The Court, however, held that where the successful party had made allegations, which were totally unreasonable and unrealistic, it was not entitled to recover its costs at the expense of the other party. The Court found that in the present case, there was no basis on which the plaintiff could make a claim for loss of earnings as there was no medical evidence supporting the conclusion that the plaintiff was unfit to find employment and the plaintiff did not even try to find any work of non-manual nature. The Court held that the plaintiff had completely failed in his claim in respect of loss of earnings and thereby caused loss of resources and time.

JUDGMENT ON COSTS of Mr. Justice Barr delivered on the 28th day of April, 2017

The Application for Costs

1 This application for costs arises out of a judgment which was given in favour of the plaintiff on 1st March, 2017, whereby he was awarded damages of €84,688.52 against the defendant in respect of injuries arising out of a road traffic accident on 21st October, 2009.

2 Subsequent to the delivery of the judgment, a short hearing was held in relation to costs. Counsel for the plaintiff submitted that as the plaintiff had succeeded in obtaining judgment against the defendant, the usual rule that costs follow the event, should be applied and the plaintiff should be awarded his costs of the action.

3 In support of his application for costs, counsel for the plaintiff referred to the decision in Godsil v. Ireland and the Attorney General [2015] IESC 103 and in particular to the following paragraphs from the judgment of the Supreme Court delivered by McKechnie J.:-

'Costs in our Legal System:

19. Inter partes litigation for those unaided is, or can be, costly: certainly it carries with it that risk. It is therefore essential in furtherance of the high constitutional right of effective access to the courts on the one hand and the high constitutional right to defend oneself, having been brought there, on the other hand, that our legal system makes provision for costs orders. This is also essential as a safeguarding tool so as to regulate litigation and the conduct and process thereof, by ensuring that it is carried on fairly, reasonably and in proportion to the matters in issue. Whilst the importance of such orders is therefore clearly self-evident, nevertheless some observations in that regard, even at a general level, are still worth noting.

20. A party who institutes proceedings in order to establish rights or assert entitlements, which are neither conceded nor compromised, is entitled to an expectation that he will, if successful, not have to suffer costs in so doing. At first, indeed at every level of principle, it would seem unjust if that were not so, but it is, with the 'costs follow the event' rule, designed for this purpose. A defendant's position is in principle no different: if the advanced claim is one of merit to which he has no answer, then the point should be conceded: thus in that way he has significant control over the legal process including over court participation or attendance. If however, he should contest an unmeritorious point, the consequences are his to suffer. On the other hand, if he successfully defeats a claim and thereby has been justified in the stance adopted, it would likewise be unjust for him, to have to suffer any financial burden by so doing. So, the rule applies to a defendant as it applies to a plaintiff.'

4 Counsel for the plaintiff also referred to the following statement of principle set out at para. 23 of the same judgment:-

'23. The general rule is that costs follow the event unless the court otherwise orders: O. 99, r. 1(3) and (4) of the Rules of the Superior Courts ('RSC'). This applies to both the original action and to appeals to this Court ( Grimes v. Punchestown Developments Co. Ltd & Anor [2002] 4 I.R. 515 (' Grimes') and S.P.U.C. v. Coogan & Ors (No.2) [1990] 1 I.R. 273). Although acknowledged as being discretionary, a court which is minded to dis-apply this rule can only do so on a reasoned basis, clearly explained, and one rationally connected to the facts of the case to include the conduct of the participants: in effect, the discretion so vested is not at large but must be exercised judicially ( Dunne v. The Minister for the Environment, Heritage and Local Government & Ors [2008] 2 I.R. 775 at 783-784) (' Dunne'). The 'overarching test' in this regard, as described by Laffoy J. in Fyffes plc v. DCC plc & Ors [2009] 2 I.R. 417 (' Fyffes') at p. 679, is justice related. It is only when justice demands, should the general rule be departed from. On all occasions when such is asserted the onus is on the party who so claims.'

5 Counsel for the plaintiff further submitted, that in a case such as this, which was an assessment, the defendant could protect itself in relation to costs by making a tender or making an offer pursuant to s. 17 of the Civil Liability and Courts Act, 2004.

6 In response, counsel for the defendant pointed out that the defendant had in fact attempted to protect itself by making a tender on 17th January, 2017, the day before the action came on for hearing, in the sum of €60,001.00. He conceded that where the plaintiff went on to beat the tender, as had been done in this case, he would prima facia be entitled to his costs.

7 However, counsel for the defendant submitted that when this case had been called on at the call-over of cases, it was indicated that the case would take approximately two days at hearing. He stated that, shortly before the action commenced, the defendant was given a schedule setting out the plaintiff's claim for past and further loss of earnings, amounting to €620,042.00. Counsel submitted that while this very large claim had been made by the plaintiff, the court in its judgment had effectively disallowed the entire of the claim for past loss of earnings and future loss of earnings, describing such claim as being 'totally unrealistic' and had instead, allowed a modest sum of €20,000.00 for loss of opportunity on the job market. It was submitted that in these circumstances, the plaintiff had effectively lost the issue in relation to his loss of earnings claim.

8 Counsel for the defendant submitted that the court should have regard to the dicta of Clarke J. in Veolia Water U.K. plc v. Fingal County Council (No. 2) [2007] 2 I.R. 81 and in particular to paras. 12, 13 and 14, wherein the learned judge set out the appropriate principles to be applied where a party who is successful in the overall action, did not succeed in relation to certain discrete issues which arose in the course of the hearing:-

'12. ... Where the winning party has not succeeded on all issues which were argued before the court then it seems to me that, ordinarily, the court should consider whether it is reasonable to assume that the costs of the parties in pursuing the set of issues before the court were increased by virtue of the successful party having raised additional issues upon which it was not successful.

13. Where the court is so satisfied, then the court should attempt, as best it can, to reflect that fact in its order for costs. Where the matter before the court involved oral evidence and where the evidence of certain witnesses was directed solely towards an issue upon which the party who was, in the overall sense, successful, failed, then it seems to me that, ordinarily, the court should disallow any costs attributable to such witnesses and, indeed, should provide, by way of set off, for the recovery by the unsuccessful party of the costs attributable to any witnesses which it was forced to call in respect of the same issue. A similar approach should apply to any discrete item of expenditure incurred solely in respect of an issue upon which the otherwise successful party failed.

14. Similarly, where it is clear that the length of the trial of whatever issues were before the court was increased by virtue of the raising of issues upon which the party who was successful in an overall sense, failed, then the court should, again ordinarily, award to the successful party an amount of costs which reflects not only that that party should be refused costs attributable to any such elongated hearing, but should also have to, in effect, pay costs to the unsuccessful party...