Donal Carey v Paul Sweeney (Trading as Paul Sweeney Financial Services) Cantor Fitzgerald Ireland Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Garrett Simons
• Judgment Date: 07 December 2021
• Neutral Citation: [2021] IEHC 751
• Court: High Court
• Docket Number: 2016 No. 3533 P

Between

Donal Carey

Plaintiff

and

Paul Sweeney (Trading as Paul Sweeney Financial Services) Cantor Fitzgerald Ireland Limited

Defendants

[2021] IEHC 751

2016 No. 3533 P

THE HIGH COURT

Leave to amend pleadings – Costs – Delivery of defence – Plaintiff seeking costs – Whether the costs of the application to amend pleadings should be made costs in the cause or be reserved to the trial judge

Facts: The principal judgment was delivered on 27 October 2021: [2021] IEHC 620. The plaintiff, Donal Carey, was successful in its application seeking leave to amend its pleadings. The application had been contested by the second defendant, Cantor Fitzgerald Ireland Ltd, and this had necessitated the setting aside of two days for the hearing of the motion. The second defendant submitted that the costs of the application to amend should either be made costs in the cause, or be reserved to the trial judge. It was submitted that the amended pleas would be separately ruled upon at trial, and if the second defendant was correct, should never have been raised by the plaintiff.

Held by the High Court (Simons J) that neither approach suggested by the second defendant would be appropriate in this case. Simons J held that the court was in as good as, if not a better, position than the trial judge to address the costs of the application to amend. The court heard the application over two days, and fully understood the issues that arose thereon. Simons J held that the modified costs order proposed in the principal judgment was intended to reflect the fact that the second defendant’s opposition to the amendments resulted in all sides incurring additional, unnecessary costs. Simons J held that the plaintiff was entitled to recover two-thirds of the costs of the motion to amend and the plaintiff was also to have the costs of the written submissions dated 29 November 2021 prepared in relation to the costs application. Simons J held that the second defendant would be entitled to its costs arising from the requirement to file an amended defence. Simons J held that costs were to be adjudicated upon under Part 10 of the Legal Services Regulation Act 2015 in default of agreement between the parties. Simons J placed a stay on the execution of the costs order pending the determination of the proceedings. This was the standard approach which had been adopted, and there did not appear to Simons J to be any sound basis for departing from that in this case. Simons J held that the plaintiff was at liberty if it so wished, to have the costs adjudicated in the interim.

Simons J held that the second defendant’s wish to raise particulars arising out of the amendments was a reasonable request, and could be accommodated within a timetable which ensured that the proceedings were kept on track. Simons J made the following directions: on 21 December 2021 the amended statement of claim is to be delivered; on 28 January 2022 any request for particulars is to be served; on 25 February 2022 replies to particulars are to be served; and on 25 March 2022 the amended defence is to be delivered.

Costs awarded to plaintiff.

Appearances

Esmonde Keane SC and Alan Keating for the plaintiff instructed by Augustus Cullen Law LLP

Paul Gardiner SC, John Breslin SC and Stephen B Byrne for the second named defendant instructed by Maples and Calder (Ireland) LLP

JUDGMENT of Mr. Justice Garrett Simons delivered on 7 December 2021

INTRODUCTION

1 This judgment addresses the final form of orders to be made in respect of an application to amend pleadings. The principal judgment was delivered on 27 October 2021, and bears the neutral citation [2021] IEHC 620. As appears, the plaintiff was successful in its application seeking leave to amend its pleadings. The application had been contested by the second named defendant, and this had necessitated the setting aside of two days for the hearing of the motion.

COSTS

2 The principal judgment had set out the court's provisional view in relation to costs as follows:

“Insofar as the allocation of legal costs is concerned, my provisional view is that the plaintiff is entitled to recover two-thirds of his costs of the motion for leave to amend. Whereas an application to court was necessitated, it could have been dealt with as a “ short” motion in a Monday list but for the second named defendant's unsuccessful objection. In the event, the application to amend ran into a second day. This costs order is proposed for reasons similar to those explained in Stafford v. Rice [2021] IEHC 344. If either party wishes to contend for a different form of order, they should file written legal submissions within three weeks of today's date.”

3 The second named defendant delivered short submissions on 16 November 2021; the plaintiff much longer submissions on 29 November 2021. The second named defendant queried whether the written submissions on behalf of the plaintiff had been delivered out of time and whether same had been formally filed in the Central Office of the High Court.

4 Notwithstanding the slight delay in the delivery of the plaintiff's submissions and their length, I am satisfied that all submissions made are properly before the court and I have had regard to the full exchange of correspondence in preparing this judgment. I would simply observe that written legal submissions on costs must both be emailed to the appropriate registrar and filed in the Central Office.

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