Everyday Finance Dac v Mary Burns

• Jurisdiction: Ireland
• Judge: Mr. Justice Garrett Simons
• Judgment Date: 26 March 2021
• Neutral Citation: [2021] IEHC 175
• Docket Number: 2018 No. 4100P
• Court: High Court
• Date: 26 March 2021

Between

Everyday Finance Dac

Plaintiff

and

Mary Burns

Gerald Burns

Defendants

[2021] IEHC 175

2018 No. 4100P

THE HIGH COURT

Costs – Liability – Measurement – Defendant seeking costs – Whether costs should be measured on the Circuit Court scale

Facts: Proceedings were taken pursuant to s. 74 of the Land and Conveyancing Law Reform Act 2009. The case, as pleaded, was that the first defendant, Ms Burns, transferred certain lands to her son, the second defendant, Mr Burns, at a time when those lands were subject to a charge registered in favour of the plaintiff’s predecessor in title. Everyday Finance DAC was substituted as plaintiff by order dated 11 January 2021. The second defendant issued a motion seeking to have the proceedings transferred to the Circuit Court. The motion came on for hearing before Simons J on 8 February 2021 and he delivered a reserved judgment on the matter on 22 February 2021, [2021] IEHC 105 (the principal judgment). This judgment addressed the allocation of the costs of the motion to transfer the proceedings from the High Court to the Circuit Court. The motion had been resisted unsuccessfully by the plaintiff. The plaintiff accepted, in principle, that it was liable to pay the costs of the motion, but submitted that those costs should be measured on the Circuit Court scale. The determination of the appropriate costs order turned largely on whether it had been “reasonable” for the plaintiff to pursue the proceedings before the High Court, in the sense that the term is used under s. 169 of the Legal Services Regulation Act 2015.

Held by Simons J that the plaintiff chose to institute the proceedings before the High Court notwithstanding that the Circuit Court had concurrent jurisdiction. Simons J noted that the court ruled in its principal judgment that it was not “reasonable”, in the sense that that term is used under s. 11(2) of the Courts of Justice Act 1936, for the plaintiff to have commenced the action in the High Court.

Simons J held that the moving party, the second defendant, having succeeded in his motion to transfer the action to the Circuit Court, was entitled to an order for costs in his favour. Simons J held that there was no proper basis for confining those costs to the Circuit Court scale. He held that the motion had been heard and determined before the High Court, and the second defendant was entitled to recover the costs so incurred. Simons J held that the costs were to include the costs of the written legal submissions on the costs application. He held that the costs were also to include all reserved costs. He held that the costs were to be adjudicated (measured) by the Office of the Chief Legal Costs Adjudicator in default of agreement.

Costs allowed to successful party on High Court scale.

Appearances

Niamh O'Donnabhain for the plaintiff instructed by OSM Partners

Frederick W. Gilligan for the second named defendant instructed by Hallissey & Partners LLP

JUDGMENT of Mr. Justice Garrett Simons delivered on 26 March 2021

INTRODUCTION

1 This judgment addresses the allocation of the costs of a motion to transfer proceedings from the High Court to the Circuit Court. The motion had been resisted unsuccessfully by the plaintiff. The plaintiff accepts, in principle, that it is liable to pay the costs of the motion, but submits that these costs should be measured on the Circuit Court scale.

2 The determination of the appropriate costs order turns largely on whether it had been “reasonable” for the plaintiff to pursue the proceedings before the High Court, in the sense that the term is used under section 169 of the Legal Services Regulation Act 2015 (“ the LSRA 2015”).

PROCEDURAL HISTORY

3 These proceedings have been taken pursuant to section 74 of the Land and Conveyancing Law Reform Act 2009. The case, as pleaded, is that the first named defendant transferred certain lands to her son, the second named defendant, at a time when those lands were subject to a charge registered in favour of the plaintiff's predecessor in title. (Everyday Finance DAC was substituted as plaintiff by order dated 11 January 2021).

4 The second named defendant issued a motion seeking to have the proceedings transferred to the Circuit Court. The motion came on for hearing before me on 8 February 2021 and I delivered a reserved judgment on the matter on 22 February 2021, Everyday Finance DAC v. Burns [2021] IEHC 105 (“ the principal judgment”).

5 As appears from the final paragraph of the principal judgment, I offered the provisional view that the second named defendant, having succeeded in obtaining an order for transfer to the Circuit Court, would ordinarily be entitled to his costs. If the plaintiff wished to contend for a different form of costs order, then written legal submissions were to be exchanged between the parties in accordance with the timetable directed.

6 Both parties duly filed written legal submissions and the costs application has been determined on the papers.

DISCUSSION

7 Order 99, rule 2(3) of the Rules of the Superior Court indicates that the High Court should endeavour to make a costs order at the time it determines an interlocutory application (save where it is not possible justly to adjudicate upon liability for costs on the basis of the interlocutory application). This rule is especially apposite here given that the effect of the order...