Eric Somers v William J. Kennedy, Jack Fitzgerald, Sinead Curtis and Sinead Fitzpatrick

• Jurisdiction: Ireland
• Judge: Ms Justice Butler
• Judgment Date: 08 February 2020
• Neutral Citation: [2022] IEHC 78
• Court: High Court
• Docket Number: Record No. 2020/7400P

Between

Eric Somers

Plaintiff

and

William J. Kennedy, Jack Fitzgerald, Sinead Curtis and Sinead Fitzpatrick

Defendant

[2022] IEHC 78

Record No. 2020/7400P

THE HIGH COURT

Costs – Preliminary application – Plenary action – Defendant seeking costs – Whether costs should follow the event

Facts: The High Court (Butler J), in a judgment delivered on 21st January 2022, acceded to the application of the defendant, Mr Kennedy, to strike out the proceedings of the plaintiff, Mr Somers, on the grounds that they failed to disclose a reasonable or justiciable cause of action and that, insofar as they were premised on allegations of professional misconduct on the part of the defendant, those were matters within the exclusive remit of the Legal Services Regulatory Authority. The effect of the judgment was that the plaintiff’s plenary action which had been listed for hearing for two days did not proceed. The defendant applied for costs in light of the judgment. The defendant relied on s. 169(1) of the Legal Services Regulation Act 2015, O. 99, r. 2 and 3 of the Rules of the Superior Courts and the analysis of those provisions by the Court of Appeal in Chubb European Group v Health Insurance Authority [2020] IECA 183 to argue that as costs should follow the event and as he had succeeded in full, the entirety of the costs of the proceedings should be awarded to him and against the plaintiff. The plaintiff pointed to portions of the judgment where Butler J queried the approach adopted by the defendant, specifically the fact that the defendant chose not to bring a preliminary application to have the justiciability of the plaintiff’s claim determined before it was listed for a plenary trial and the consequent procedural difficulties this created, not least the fact that the plaintiff had issued a number of subpoenas in preparation for a plenary trial which the subpoenaed witnesses then sought by motion to have set aside. Consequently, the plaintiff argued that the defendant was not entitled to costs or, alternatively, was not entitled to the additional costs incurred by reason of the defendant’s decision not to bring a preliminary application to have the plaintiff’s case struck out on the grounds which ultimately prevailed.

Held by Butler J that the defendant was in principle entitled to his costs, having succeeded in full in having the plaintiff’s proceedings struck out. Butler J held that the plaintiff raised an argument of substance as to whether the defendant should be awarded the additional costs that would normally arise in the context of a plenary action listed for trial as distinct from the costs of a preliminary application. In Butler J’s view, where there are various procedural mechanisms open to a litigant to have an issue determined, all else being equal the litigant should avail of the mechanism which adds least expense to the overall cost of the proceedings. Butler J held that the defendant had a direct choice between, on the one hand, bringing the type of preliminary application that is frequently brought under O. 19, r. 28 of the Rules of the Superior Courts and/or the inherent jurisdiction of the court and, on the other, allowing the matter to be listed for plenary hearing and proceeding to trial; the latter option is inevitably more expensive than the former, but the defendant nonetheless chose the latter route to achieve an outcome that could equally well have been achieved by the former.

Butler J proposed making an order for costs in favour of the defendant to be adjudicated in default of agreement. Butler J held that the order would encompass the costs of and incidental to the proceedings against him (which proceedings had been struck out) but would not include the costs of a plenary trial; instead, the costs of the hearing which took place before Butler J were awarded to the defendant on the basis that they should be adjudicated as the costs of a motion to have the justiciability of the plaintiff’s proceedings determined as a preliminary issue which motion was listed for a full days hearing in the Chancery list. Butler J would not make any orders in respect of the costs of the motions brought to set aside the subpoenas.

Costs in favour of defendant.

JUDGMENT ON COSTS of Ms Justice Butler delivered on 8th day February 2020.

1 This is my ruling on an application for costs that has been made by the defendant in light of the judgment delivered by me on 21st January 2022. In that judgment I acceded to the defendant's application to strike out the plaintiff's proceedings on the grounds that they failed to...