Egan and Another v Egan and Another (No. 2)

• Jurisdiction: Ireland
• Judge: Mr. Justice Twomey
• Judgment Date: 20 July 2023
• Neutral Citation: [2023] IEHC 434
• Court: High Court
• Docket Number: Record No. 2022/257 CA

Between

Kieran Egan and Michael Egan Junior

Plaintiffs

and

Helen Egan and Alan Egan

Defendants

[2023] IEHC 434

Record No. 2022/257 CA

THE HIGH COURT

CIRCUIT APPEALS

JUDGMENT OF Mr. Justice Twomey delivered on the 20 ^th day of July, 2023

INTRODUCTION

1 . According to the Supreme Court in Connelly v. An Bord Pleanála [2018] IESC 36 at para. 8, to take an ‘ overly meticulous approach’ to costs ‘would be counterproductive in that it would turn every costs application into a major further hearing resulting in even more costs’. In that case, the Supreme Court was concerned about the fact that because a broad approach was not taken to costs, that the costs hearing ended up taking ‘over an hour’ and so even more costs.

2 . In this case, the costs hearing took twice that length of time, as it took two hours, even though in most cases, as is clear from Connelly, the winner and losers in litigation are plain and for this reason costs hearing should only take a few minutes, without the need for any written submissions.

3 . This judgment relates to a costs' application arising from the judgment in Egan v. Egan [2023] IEHC 259 (“ Principal Judgment”) and it is a perfect example of the point being made by the Supreme Court in Connelly, that costs hearing which do not take a broad approach to who won/lost the case end up incurring further legal costs and expending scarce court resources.

4 . It is important to emphasise that that no criticism is made of the defendants' lawyers in how they ran the costs application, since if one does not take a broad approach to costs, it is almost always possible to find some criticism about how the ‘winner’ conducted the case. In resisting an order for costs in favour of the winner in this litigation, the defendants' lawyers were, no doubt, acting on the instructions of the defendants.

ANALYSIS

5 . In the Principal Judgment, the defendants lost the issue in dispute between the parties, i.e. whether Mr. Egan Snr or Mr. Egan Jnr owned the half share in the Farm.

6 . This Court held that Mr. Egan Jnr owned that half-share, since the alleged Release by Mr. Egan Jnr of his share of the Farm in favour of Mr. Egan Snr was not valid. (Definitions which are used in the Principal Judgment are applicable herein.)

7 . The substantive hearing took two and a half days, yet instead of the costs hearing lasting a few minutes, it took a further half-day of scarce court resources for the costs hearing. Thus, this was a case where circa 20% further time, after the hearing had finished, was spent incurring further legal costs arguing about who should pay the legal costs (without taking account of the time incurred in reading submissions or preparing a reserved judgment).

8 . At the costs hearing, the defendants (who represent the estate of Mr. Egan Snr) argued that, although they had lost on who owned the Farm, this Court should nonetheless not order costs against them — that the parties should go ‘back to back’ on costs.

9 . They took this approach to costs because at para (i) of the Indorsement of Claim in the Equity Civil Bill, Mr. Egan Jnr claimed that the Release was:

“invalid and/or forged and/or void ab initio and are of no legal effect”. (Emphasis added)

Thus forgery was one of the alternative reasons relied upon by Mr. Egan Jnr for his claim that the Release was ineffective. This Court held that Mr. Egan Jnr's signature was not forged.

10 . However, this Court relied on one of the alternative claims of Mr. Egan Jnr, i.e. that the Release was of ‘no legal effect’, and so it did not achieve its purported aim of disclaiming Mr. Egan Jnr's inheritance of a half-share in the Farm in favour of Mr. Egan Snr.

11 . Thus, this Court decided the only dispute between the parties, i.e. whether Mr. Egan Jnr or Mr. Egan Snr was the legal owner of the half share of the Farm, in favour of Mr. Egan Jnr.

12 . It is important to point out that while this Court concluded that Mr. Egan Jnr's signature was not forged on the Release, it was not necessary for this Court to make any determination regarding the very curious Release document and how it came to be that Mr. Egan Jnr's signature was on this document.

Orders sought to be inserted which were never sought on pleadings

13 . However, at the costs hearing the defendants made, what counsel for Mr. Egan Jnr claimed was an unprecedented application for two orders from the Court, namely:

“A Declaration that the “Deed of Release” was not executed by [Mr. Egan Snr].

A Declaration that the signature of [Mr. Egan Jnr] on the “Deed of Release” was not forged.”

The application for these orders is most curious, since there was no counterclaim by the defendants seeking such orders and nowhere in the pleadings are any such declarations sought by the defendants or by the plaintiff.

14 . Accordingly, it is hard not to avoid the conclusion that the only reason that the defendants were seeking these declarations at the costs hearing was in order to bolster their application for costs for winning on the forgery point, even though such declarations make no difference to the only dispute that matters – who owns the Farm.

15 . As a matter of first principles, this Court rejects the application that the final orders should contain either of these declarations. This is for the simple reason that no such orders were ever sought in the proceedings by either party, but in particular by the defendants, and so there is no possible basis for the Court to insert such orders in the final Court Order now (in the absence of consent on the part of the plaintiff).

Costs to reflect fact that defendants won on the forgery point?

16 . As regards the defendants' claim that there should be no order as to costs for winning on the ‘forgery’ claim, this seems removed from reality.

17 . This is because it must be remembered that the Release purported to be a disclaimer by a son barely out of his teens of his share in the Farm, in favour of his father with whom he had a strained relationship. Furthermore, the Release was a one sentence document drafted in terms, unlikely to be understood by the son, which was not dated, witnessed, sealed or stamped and which...