DRM Contract Administration Ltd v Proton Technologies AG

JudgeMr. Justice Garrett Simons
Judgment Date02 December 2021
Neutral Citation[2021] IEHC 714
Docket Number2018 No. 8976 P
CourtHigh Court
DRM Contract Administration Limited
Proton Technologies AG

[2021] IEHC 714

2018 No. 8976 P



Sean Corrigan for the plaintiff instructed by Sharon Oakes Solicitor

Anthony Thuillier for the defendant instructed by William Fry Solicitors

JUDGMENT of Mr. Justice Garrett Simons delivered on 2 December 2021


This judgment addresses the appropriate costs order to be made in respect of two procedural motions. The first motion was brought on behalf of the defendant, and sought to have a default judgment set aside on the basis that the proceedings had not been properly served. The second motion had been brought on behalf of the plaintiff, on a precautionary basis, and sought to have the plenary summons renewed. It should be explained that the plaintiff brought its motion in an attempt to protect its position in respect of the limitation period in the event that the service of the proceedings were to be set aside as irregular.


Both motions came on for hearing before me on 20 July 2021. A reserved judgment was delivered on 25 August 2021 (“ the principal judgment”). The principal judgment bears the neutral citation [2021] IEHC 554. The overall outcome of the motions was that the default judgment was set aside, but the plaintiff was given leave to renew the plenary summons.


I had set out my provisional view in relation to costs at paragraphs 111 to 115 of the principal judgment as follows:

“Insofar as costs are concerned, it is a condition of the order setting aside the default judgment and the Norwich Pharmacal order that the plaintiff should recover as against the defendant the adjudicated costs of the applications on 21 January 2019 and 2 July 2020, respectively. These costs were incurred as a result of the defendant's failure to engage with the proceedings earlier. The costs associated with the drafting of the plenary summons and the statement of claim are not recoverable as part of this costs order. This is because such costs would have had to be incurred even if the defendant had engaged with the proceedings from the outset. Such costs fall to be allocated by the trial judge.

Insofar as the costs of the two motions heard on 20 July 2021 are concerned, my provisional view as to the appropriate costs order is set out below. The provisional view is predicated on the assumption that the motions are subject to Part 11 of the Legal Services Regulation Act 2015. Any costs order will be subject to a stay in the event of an appeal, and subject to the proviso that, in default of agreement between the parties, costs are to be adjudicated upon under Part 10 of the Legal Services Regulation Act 2015.

The plaintiff would appear to be entitled to the costs of the motion to renew the summons under Order 8 of the Rules of the Superior Courts. This is because the plaintiff has been “entirely successful” in this application notwithstanding the defendant's opposition to same. Further, it is at least arguable that the application to renew would not have been necessary at all “but for” the failure of the defendant to engage with the proceedings.

The plaintiff would also appear to be entitled to the costs of the motion to set aside the default judgment. Whereas the plaintiff did not ultimately succeed in its opposition to the motion, it would have been necessary for the defendant to bring the motion before the court even had the plaintiff consented to same. Further, one of the considerations to be taken into account on a costs application is litigation conduct. For the reasons explained earlier, the initial approach of the defendant to these proceedings is to be deprecated. Subject to any submission which the defendant may make, it would seem reasonable to mark the court's disapproval by awarding the costs of the motion against the defendant.”


The parties were given liberty to file written submissions by 10 October 2021 in the event that they contended for a different form of costs order. Both parties duly filed short written legal submissions, and these were supplemented by oral submission at a hearing on 27 October 2021.


Following that hearing, the parties were directed, pursuant to Order 99, rule 7(3) of the Rules of the Superior Courts, to produce to the court, and to exchange with one another, estimates of the costs respectively incurred by them in relation to the two motions. The costs estimates were duly received by the registrar on 9 November 2021.


Counsel on behalf of the defendant submits that having regard to the supposed failings of both sides, the appropriate order is that each side should bear its own costs. It is submitted that the plaintiff acted unreasonably in opposing the application to set aside the default judgment. It is said that that application could and should have been dealt with on consent. Instead, the plaintiff's opposition had the consequence that unnecessary costs had been incurred. The hearing took up a full day and both sides had been put to the expense of preparing detailed legal submissions and affidavits.


Counsel relied, by analogy, on the approach taken in Care Prime Holdings FC Ltd v. Howth Estate Company (No. 2) [2020] IEHC 329 and Stafford v. Rice (Costs) [2021] IEHC 344. In each of those cases, the costs were discounted to reflect the fact that had the responding party simply consented to the relevant motion, same could have been dealt with as a short motion on a Monday listing, with an attendant saving in costs.


It is further submitted that the making of a costs order in respect of the two motions is not necessary to protect the plaintiff's position. Rather, it is said, the plaintiff's position is adequately protected (i) by allowing it to renew its summons (and thus retain the benefit of the date of the institution of the proceedings on 15 October 2018 for the purpose of the Statute of Limitations), and (ii) by awarding the plaintiff the costs of two earlier applications which had been pursued on the understanding that the proceedings were not being defended.


As to the defendant's own conduct, it is said that a costs order against it is not necessary to mark the court's disapproval of the tactical decision taken by the defendant. It is said that an incorrect understanding on the part of a foreign defendant as to the workings of the Irish legal system cannot be described as disrespectful. Rather, the incorrect understanding or assumption could be characterised, at most, as misguided, naïve or unwise.


The default position under section 169 of the Legal Services Regulation Act 2015 is that a party who has been “ entirely successful” in civil proceedings will normally be entitled to recover their legal costs from the unsuccessful party. Importantly, however, the court retains a discretion to make a different form of costs order, having regard to the particular nature and circumstances of the case, and the conduct of the proceedings by the...

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