Farrell v RAS Medical Ltd [Trading as Auralia Clinic] and Others

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Garrett Simons
• Judgment Date: 24 July 2024
• Neutral Citation: [2024] IEHC 434
• Docket Number: 2022 606 P

Between

Lyndsey Farrell

Plaintiff

and

Ras Medical Ltd (Trading As Auralia Clinic)

Ahmed Ramzi Salman

Shadab Imtiyaz Ahmad

Defendants

[2024] IEHC 434

2022 606 P

THE HIGH COURT

JUDGMENT of Mr. Justice Garrett Simons delivered on 24 July 2024

INTRODUCTION

1 This ruling determines the incidence of the legal costs of a motion seeking to set aside a default judgment. The motion was ultimately successful for the reasons set out in a reserved judgment delivered on 24 June 2024, Farrell v. RAS Medical Ltd [2024] IEHC 369 (“ the principal judgment”).

DISCUSSION

2 The principles governing the allocation of legal costs are set out at Part 11 of the Legal Services Regulation Act 2015 and Order 99 of the Rules of the Superior Courts (as recast in 2019).

3 The default position is that costs follow the event, i.e. the successful party will normally be entitled to recover its costs as against the unsuccessful party. Insofar as the costs of substantive proceedings are concerned, this general principle is stated at Section 169 of the Legal Services Regulation Act 2015. The position in relation to a pre-trial or interlocutory motion, such as that the subject-matter of this costs ruling, is governed by Order 99, rule 3 which provides, in relevant part, that the High Court, in considering the awarding of the costs of any step in any proceedings, shall have regard to the matters set out in Section 169(1) of the above Act where applicable. Order 99, rule 3 further provides that the High Court is obliged, upon determining any interlocutory application, to make an award of costs save where it is not possible justly to adjudicate upon liability for costs on the basis of the interlocutory application. The type of circumstances in which it might not be possible to adjudicate on costs are discussed in ACC Bank plc v. Hanrahan [2014] IESC 40, [2014] 1 I.R. 1 (at paragraphs 8 to 11 of the reported judgment). Where, as in the present case, the issues arising on the pre-trial motion are self-contained and will not have to be revisited at the trial of the action, it is appropriate for the motion judge to determine the incidence of costs.

4 A motion to set aside a default judgment typically gives rise to special considerations in respect of costs. A defendant, who has been successful in the motion, may nevertheless be ordered to pay the other side's costs. This is because the resolution of a motion to set aside a default judgment requires the court to weigh the balance of justice. This will necessitate the court looking beyond the formal outcome of the motion when determining the allocation of costs. There may have been some culpability on the part of the defendant in allowing the default judgment to be entered in the first instance and this may need to be reflected in the costs order. Alternatively, a court may consider that the prejudice caused to a plaintiff by losing the benefit of the default judgment should be ameliorated by allowing them to recover the costs of the motion. In two recent High Court judgments, De Souza v. Liffey Meats (Cavan) [2023] IEHC 402 (Ferriter J.) and Costern v. Fenton [2023] IEHC 552 (O'Donnell J.), the successful defendant was directed to pay the costs of the...