Gary Keville Transport Ltd v MSC [Mediterranean Shipping Company] Ltd
| Jurisdiction | Ireland |
| Judge | Mr. Justice Dignam |
| Judgment Date | 21 September 2022 |
| Neutral Citation | [2022] IEHC 544 |
| Court | High Court |
| Docket Number | [RECORD NO. 2021 5055 P] |
and
[2022] IEHC 544
[RECORD NO. 2021 5055 P]
THE HIGH COURT
JUDGMENT of Mr. Justice Dignam delivered on the 21 st day of September 2022 .
This judgment follows on my earlier judgment in this case ( [2022] IEHC 130) and should be read therewith. In my earlier judgment I refused the plaintiff's application for an interlocutory injunction and the question of the liability for costs in respect of that application now falls to resolved. The parties made detailed oral and written submissions on the question of costs.
I do not propose to set out the background facts as they are set out at length in my earlier judgment.
In summary, the plaintiff (“GKT”) applied for an interlocutory injunction restraining the defendants (“MSC”) from “exercising any embargo on the Plaintiff delivering and/or collecting the Defendants' containers from any depot within Ireland and in particular to revoke and/or cease any instruction or business practice which has the consequence of prohibiting the Plaintiff company from transporting collecting and/or carrying the Defendants containers”.
I concluded that GKT had established a fair question to be tried on a narrow aspect of one of the grounds advanced but was satisfied that damages would be an adequate remedy and that the balance of justice or convenience was against the grant of an injunction. I therefore refused the relief.
MSC seek their costs on the basis that it succeeded in opposing the application. GKT advanced the position that I should either (i) make no order as to costs, (ii) reserve the question of costs, (iii) make the costs costs in the cause, (iv) make a partial costs order, or (v) award costs but with a set off in respect of the points on which MSC did not succeed. As a fall-back GKT suggested that if MSC were awarded their costs there should be a stay on that order pending determination of the proceedings and, similarly, that if I decided to make an order in terms of option (iv) of (v) I should also place a stay on the order pending the determination of the proceedings.
The legal framework in respect of costs is provided by section 168 and 169 of the Legal Services Regulation Act 2015 and Order 99 of the Rules of the Superior Courts.
Section 168 of the 2015 Act provides, inter alia:
“(1) Subject to the provisions of this Part, a court may, on application by a party to civil proceedings, at any stage in, and from time to time during, those proceedings –
order that a party to the proceedings pay the costs of or incidental to the proceedings of one or more other parties to the proceedings, or
…
(2) Without prejudice to subsection (1), the order may include an order that a party shall pay –
(a) a portion of another party's costs,
(b) costs from or until a specified date, including a date before the proceedings were commenced,
(c) costs relating to one or more particular steps in the proceedings,
(d) where a party is partially successful in the proceedings, costs relating to the successful element or elements of the proceedings, and
(e) interest on costs from or until a specified date, including a date before the judgment.”
Section 169 of the 2015 Act provides, inter alia:
“(1) A party who is entirely successful in civil proceedings is entitled to an award of costs against a party who is not successful in those proceedings, unless the court orders otherwise, having regard to the particular nature and circumstances of the case, and the conduct of the proceedings by the parties, including:-
(a) conduct before and during the proceedings,
(b) whether it was reasonable for a party to raise, pursue or contest one or more issues in the proceedings,
(c) the manner in which the parties conducted all or any part of their cases,
(d) whether a successful party exaggerated his or her claim,
(e) whether a party made a payment into court and the date of that payment,
(f) whether a party made an offer to settle the matter the subject of the proceedings, and if so, the date, terms and circumstances of that offer, and
(g) where the parties were invited by the court to settle the claim (whether by mediation or otherwise) and the court considers that one or more of the parties was or were unreasonable in refusing to engage in the settlement discussions or remediation…”
Order 99 of the Rules of the Superior Courts provides, inter alia:
“(2) Subject to the provisions of statute (including sections 168 and 169 of the 2015 Act) and except as otherwise provided by these Rules:
The costs of and incidental to every proceeding in the Superior Courts shall be in the discretion of those Courts respectively.
…
The High Court, the Court of Appeal or the Supreme Court, upon determining any interlocutory application, shall 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.
(3) (1) The High Court, in considering the awarding of the costs of any action or step in any proceedings, and the Supreme Court and Court of Appeal in considering the awarding of the costs of any appeal or step in any appeal, in respect of a claim or counterclaim, shall have regard to the matters set out in s. 169(1) of the 2015 Act, where applicable.”
The parties also referred the Court to a number of other passages and other cases. I deal with these when considering the arguments advanced by the parties.
Both parties agreed that the correct general approach was that MSC as the successful party in respect of the outcome were entitled to their costs, or at least that the Court should lean towards awarding them their costs ( Daly v Ardstone Capital Limited [2020] IEHC 345), unless the Court, having had regard to the matters contained in section 169(1)(a)-(g), ordered otherwise.
During the course of the hearing, each of the parties pointed to matters referable to some of the factors contained in section 169(1)(a) – (g) to either support the case that MSC should be awarded its costs or that the Court should in the particular circumstances depart from the rule or general approach that costs should follow the event.
I am satisfied for the following reasons that the appropriate order is an order for MSC's costs with a stay pending conclusion of the proceedings.
GKT points to a number of factors which it says warrants a departure from the agreed starting point that MSC is entitled to its costs, or which supports the court dealing with the costs in one of the ways set out in paragraph 5 above. I deal with these in a slightly different order to that set out in paragraph 5.
GKT's submission that the costs should be reserved must be considered in the context of the requirement in Order 99 rule 2(3) that the Court must, upon determining any interlocutory application, make an award of costs save where it is not possible justly to adjudicate upon liability for costs (Order 99 r.2(2); Daly v Ardstone Capital Ltd [2020] IEHC 355, para 15). The basis for the submission that the costs should be reserved were that (i) five matters canvassed during the interlocutory hearing required further evidence, argument, or development at the full trial and, (ii) the Defence had not been delivered.
In respect of the first point it was submitted that the Court had held that the points sought to be made by GKT in respect of the law of bailment and the claim that GKT may have a lien on MSC's containers required further argument and development; that GKT had not pushed its point in respect of the abuse of a dominant position and accepted that it required further evidence; and that the Court had held that the allegation of defamation and MSC's allegation that GKT had not come to court with clean hands required further evidence.
I do not believe that any of these mean that the Court can not justly adjudicate on the liability for costs. In respect of the question of bailment and liens, it is the case that GKT suggested that the law relating to these matters might be relevant to an analysis of MSC's freedom to act in relation to its containers in certain circumstances and I noted in paragraph 64 of my judgment that GKT referred in its submissions to a lien and the law of bailment as being of relevance but that this had not been developed yet. In general, a plaintiff can not reserve its evidence or arguments on individual points at the interlocutory stage and then seek to avail of the need for further evidence or argument to ground a claim that the costs of that interlocutory application should be reserved. While there was some very slight development of the lien point in Mr. Keville's second affidavit where he says, “ Whilst I am advised issues such as bailment, quantum meruit and the exercise of a lien are matters of law, I say that it is industry practice for a haulier to exercise a lien over a container and/or contents of a container in its possession pending payment for its services.” However, as noted above, this affidavit was admitted on the express basis that its contents were disputed by MSC. Indeed, Mr. Douglas on behalf of MSC had previously said in this affidavit that “…I am not aware of a single instance where a haulier has seen fit to withhold the return of the First Named Defendant's equipment (or any other shipping company's equipment) against the payment of charges unilaterally imposed and without any contractual basis.” I could therefore not have made a finding whether or not it is industry practice for hauliers to exercise such a lien as against shipping companies.
This is brought into sharper focus in respect of the claim that MSC were abusing their...
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