Dowling and Others v The Minister for Finance; Neugebauer v The Minister for Finance; Keohane v The Minister for Finance; McGann v The Minister for Finance

JurisdictionIreland
JudgeMr. Justice Robert Haughton
Judgment Date31 July 2023
Neutral Citation[2023] IECA 197
CourtCourt of Appeal (Ireland)
Docket NumberRecord Number: 2014/871, 2014/872, 2014/873, 2014/874

In the Matter of Irish Life & Permanent Plc and in the Matter of the Credit Institutions (Stabilisation) Act 2020, and in the Matter of An Application by the Minister for Finance for a Direction in Relation to Irish Life & Permanent Plc Pursuant to Section 9 of the Credit Institutions (Stabilisation) Act 2010 and Ancillary Orders

Between/
Gerard Dowling, Padraig McManus, Piotr Skoczylas, Scotchstone Capital Fund Limited, John Paul McGann, George Haug, Tibor Neugebauer, and J. Frank Keohane
Appellants
and
The Minister for Finance
Respondent

and

Permanent TSB Plc (Formerly Irish Life and Permanent Plc)
Notice Party

[2023] IECA 197

Haughton J.

Binchy J.

Pilkington J.

Record Number: 2014/871, 2014/872, 2014/873, 2014/874

High Court Record Number: 2012/116MCA

THE COURT OF APPEAL

Legal costs – Adjudication – Party and party costs awards – Refusal of stay – Appeal against

Facts: A substantive judgment had been handed down by the Court in November 2022. The judgment affirmed the decision of the High Court that the appellants did not have locus standi under the Credit Institutions (Stabilisation) Act, 2010 to seek to set aside a Direction Order made on 28 March 2012 whereby the Notice Party()was directed to sell its life assurance business, Irish Life Limited , to the respondent for the sum of €1.3Bn. Costs were awarded to the respondent, and an application for a stay of that costs order was refused. The appellants now sought to appeal the refusal.

Held by Haughton J, that the respondent had been successful on all fronts, they were entitled to be awarded the related costs of any proceedings the appellants had chosen to pursue. The Costs Order appeal was allowed only to amend to provide that such costs be adjudicated by a Legal Costs Adjudicator in default of agreement(rather than being taxed).

JUDGMENT ON COSTS AND STAY APPLICATION

JUDGMENT of Mr. Justice Robert Haughton delivered on the 31 st day of July, 2023

Introduction and Preliminary matters
1

. The substantive judgment of this court on these appeals was delivered herein electronically on 8 November 2022 (Haughton J., with whom Binchy and Pilkington JJ concurred) (“ the Principal Judgment”). The Principal Judgment affirmed the decision of the trial judge (Peart J.) that the appellants do not have locus standi under s. 11 of the Credit Institutions (Stabilisation) Act, 2010 (as amended) (“ the 2010 Act”) to seek to set aside a Direction Order made on 28 March 2012 pursuant to s. 9 of the 2010 Act (“ the March 2012 Direction Order”) and ancillary orders whereby the Notice Party (as in the Principal Judgment also referred to herein as “ ILP”) was directed to sell its life assurance business, Irish Life Limited and its subsidiaries (“ Irish Life”), to the respondent for the sum of €1.3Bn, such sale to be completed not later than 30 June 2012. Peart J. accordingly dismissed the appellants' applications, and in its Principal Judgment this court affirmed those orders.

2

. In a further judgment delivered ex tempore by Peart J. on 8 August 2012 (“ The Costs Judgment”) it was ordered that the applicants (the appellants herein) do pay to the respondent and Notice Party the costs of the proceedings, to include all reserved costs, to be taxed in default of agreement. At a further hearing before Peart J. on 26 August 2012 the appellants' application for a stay was refused. The appellants' appeal in respect of the Costs Judgment, and the refusal of a stay, are the subject of this judgment.

3

. Further, in a Notice of Motion dated 22 December 2022, three of the appellants, Piotr Skoczylas, John Paul McGann and Tibor Neugebauer (who since the Principal Judgment have been the only active appellants) sought inter alia an order that the members of this court recuse themselves from adjudicating further in these proceedings on grounds of objective bias (“ the Recusal Application”). Having heard the parties in a Ruling delivered on 25 April 2023 (“ the Recusal Judgment”) this court rejected that application, gave directions for the hearing of the balance of outstanding matters, and reserved the costs of the Recusal Application to the further hearing of the appeal.

4

. Accordingly this judgment deals with the following matters:-

(1) The appellants' appeal in respect of the Costs Judgment in the High Court.

(2) The costs of the appeal.

(3) The costs of the Recusal Application.

(4) The appellants' application for a stay pursuant to the said notice of motion dated 24 November 2022 at relief no.3 in which they sought –

“… an order to stay these proceedings and to stay any order in this case, pending the conclusion of the ongoing cases rec. no. 2013/2708P and 2013/2709P (the “Constitutional Proceedings”) in respect of the inconsistency of the Credit Institutions (and Stabilisation) Act, 2010 (the “2010 Act”) with the Constitution and the incompatibility of the 2010 Act with EU law and the ECHR.”

The Constitutional Proceedings were heard over 3 days in the High Court (Bolger J.) in June 2023 and judgment has been reserved. In the alternative a stay is sought in respect of costs only pending possible further appeal to the Supreme Court.

(5) The costs of the costs/stay hearing leading to this judgment.

5

. This judgment should be read with the Costs Judgment, the Principal Judgment, the Recusal Judgment, and a further ruling of this court delivered herein on 13 December 2022 refusing an application to review the Principal Judgment (“ the Review Ruling1).

6

. It is appropriate to mention here that in the final paragraph of the Principal Judgment I stated, in relation to the costs of the appeal, the following:-

“As has become usual where judgment is delivered electronically, I will indicate the order that I would propose to make in relation to the costs of these appeals. As the Minister and the notice party were “entirely successful” in these appeals within the meaning of that term in s.169(1) of the Legal Services Regulation Act, 2015 they are entitled to their costs of the appeals, such costs to include all reserved costs, and such costs to be adjudicated by a legal costs adjudicator in default of agreement. In the event that any party wishes to contend for some other order as to costs of the appeals that party should so notify the Court of Appeal office within 21 days from the date of electronic delivery of this judgment and a short hearing will be arranged.”

7

. Pursuant to the directions given in the Recusal Judgment on 25 April 2023 written submissions on the outstanding issues were received from Mr. Skoczylas, from the respondent, and from the Notice Party. At a hearing held on 11 July 2023 the court heard from Mr. Skoczylas, whose submissions, both written and oral, were adopted by the appellants Mr. McGann and Mr. Neugebauer, and the court heard from counsel for the respondent and Notice Party. The structure and content of Mr. Skoczylas' oral submissions were based in large part on a 12 page email received by the court on the morning of the hearing, and which set out the extracts from authorities which he relied upon, in addition to his written submission.

8

. With regard to the parties named as appellants in the title hereof, only Messrs. Skoczylas, McGann and Neugebauer have actively pursued their appeals in respect of the Costs Judgment, and seek their costs of the appeal and Recusal Application, and a stay. In essence they seek –

  • (1) that the High Court costs orders be set aside and that they be awarded their costs of the High Court or alternatively that no orders be made;

  • (2) that they be awarded the costs of the appeals or alternatively that no orders be made;

  • (3) that they be awarded the costs of the Recusal Application;

  • (4) further and in the alternative that no costs be awarded to the Notice Party;

  • (5) without prejudice to the foregoing, that this court's final orders, or at any rate any orders awarding costs against the appellants, be stayed until the ultimate adjudication of the Constitutional Proceedings, or alternatively pending the outcome of any application to the Supreme Court for further leave to appeal from this court.

9

. The Respondent and Notice Party oppose all the orders sought, and seek their costs orders in respect of the appeal and the Recusal Application only against the three active appellants. My understanding from this is that, notwithstanding that Scotchstone Capital Fund Limited pursued the appeal and was represented by a solicitor (who adopted Mr. Skoczylas' arguments), costs of the appeal are not being pursued against that company. The respondent and Notice Party also resist any stay, or at any rate any stay beyond the point at which the appellants might apply for leave to further appeal to the Supreme Court.

10

. With regard to the other named appellants:

  • 1) Mr. Dowling: He pursued the appeal. However no further costs are sought against him by the respondent or Notice Party. Accordingly the High Court order in respect of him is to be affirmed, but no further costs order is made against him.

  • 2) Mr. McManus: The same applies as with Mr. Dowling.

  • 3) Scotchstone Capital Fund Limited – see above. There has been no further step taken by or on behalf of the company following the Principal Judgment, and no further costs appear to be sought against it. Accordingly the High Court order in respect of it, including the costs order, is affirmed, but no further costs order is made against it.

  • 4) Mr. Haug is deceased and at the appeal hearing the appeal in his name was struck out 2, and this should be recorded in this court's final perfected order.

  • 5) Mr. Keohane. He did not appear to prosecute his appeal, and it was struck out without any further costs no order 3, and again this should be reflected in this court's perfected order.

The Costs Judgment
11

. The trial judge commenced by noting the provisions of O. 99 R.S.C. as it then...

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