Gilliland v Motor Insurers' Bureau of Ireland

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice MacGrath
Judgment Date30 November 2018
Neutral Citation[2018] IEHC 738
Docket Number[2014 No. 781 JR]
Date30 November 2018
BETWEEN
JASON GILLILAND
APPLICANT
AND
MOTOR INSURERS' BUREAU OF IRELAND, THE MINISTER FOR TRANSPORT TOURISM AND SPORT, THE MINISTER FOR FINANCE, IRELAND

AND

THE ATTORNEY GENERAL
RESPONDENTS

[2018] IEHC 738

[2014 No. 781 JR]

THE HIGH COURT

JUDICIAL REVIEW

Costs - Special circumstances - Judicial review - Applicant seeking costs - Whether there were special circumstances for the making of an order for costs in favour of the applicant

Facts: The applicant, Mr Gilliland, on 27th October, 2012, was involved in a road traffic accident and suffered injuries. The driver of the offending vehicle was insured with Setanta Insurance Company Ltd. On 11th March, 2014, Mr Gilliland applied in normal course to the Personal Injuries Assessment Board for compensation in respect of the injuries suffered. An assessment was made. It was accepted, or deemed to be accepted, and on 8th May, 2014, an order to pay in the amount of €36,290.00 was made against the Setanta policyholder. Before payment Setanta had become insolvent and went into liquidation in 30th April, 2014. Mr Gilliland was not paid. His solicitor wrote to the first respondent, the Motor Insurers' Bureau of Ireland (MIBI), calling upon it to satisfy the order to pay pursuant to their stated obligations under clause 4 of the Motor Insurers' Bureau of Ireland Agreements 1955 to 2009 (the MIBI Agreements). The MIBI declined to satisfy the order to pay. Subsequently, the applicant sought the assistance of the State to enforce the order to pay. The MIBI, on legal advice, declined to pay on the grounds that it was not liable. The applicant's solicitor was informed in October, 2014, by the third respondent, the Minister for Finance, that the liquidator of Setanta would seek to satisfy each claimant and that thereafter recourse should be had to the Insurance Compensation Fund. Satisfaction by such fund was limited to 65% of the award and costs. The applicant was not content with the decision of the MIBI and the Minister and on 15th December, 2014, he applied for leave to issue proceedings by way of judicial review seeking, inter alia, a declaration that the decision of the respondents was unlawful. On 13th April, 2015, the Accountant of the Courts of Justice, having statutory responsibility to administer the Insurance Compensation Fund, instituted proceedings in the High Court seeking clarification of the potential liability of the MIBI for claims arising from the insolvency of Setanta (the Accountant's proceedings). The Law Society of Ireland was joined as a legitimus contradictor. These proceedings, on the consent of the parties, were put on hold pending the outcome of the Accountant's proceedings. That case proceeded through all divisions of the Superior Courts - the High Court ([2015] IEHC 564), the Court of Appeal ([2016] IECA 60) and ultimately the Supreme Court ([2017] IESC 31) which on 25th May, 2017 rejected the claim. The effect of that decision was that the MIBI did not have any liability to such claimants, including the applicant in this case. The applicant's proceedings effectively came to an end and the only remaining issue to be determined was liability for the costs of the application for judicial review. The applicant pursued his costs as against the first respondent. The applicant maintained that special circumstances arose in this case which should be taken into account by the High Court in exercising its discretion to award costs, in full or in part, in favour of the applicant. The first respondent maintained that there are no such circumstances and that the proceedings before the Court were moot.

Held by MacGrath J that there were no special circumstances within the meaning of O. 99 of the Rules of the Superior Courts for the making of an order for costs in favour of the applicant.

MacGrath J held that there should be no order as to costs.

Application refused.

JUDGMENT of Mr. Justice MacGrath delivered on the 30th day of November, 2018.
1

This is an application for the costs of judicial review proceedings which are being withdrawn following the Supreme Court decision in Law Society v. Motor Insurers' Bureau of Ireland [2017] IESC 31. The applicant claims that there are exceptional circumstances in this case which justify the departure from the general rule that costs follow the event.

2

On 27th October, 2012, the applicant was involved in a road traffic accident and suffered injuries. The driver of the offending vehicle was insured with Setanta Insurance Company Limited (' Setanta'). On 11th March, 2014, Mr. Gilliland applied in normal course to the Personal Injuries Assessment Board for compensation in respect of the injuries suffered.

3

An assessment was made. It was accepted, or deemed to be accepted, and on 8th May, 2014, an order to pay in the amount of €36,290.00 was made against the Setanta policyholder. Before payment Setanta had become insolvent and went into liquidation in 30th April, 2014. Mr. Gilliland was not paid.

4

The Court has been informed that when Setanta went into liquidation on 30th April, 2014, approximately 1,750 claims by and against Setanta policyholders were outstanding. The order to pay in favour of Mr. Gilliland remained unsatisfied. His solicitor wrote to the Motor Insurers' Bureau of Ireland (' MIBI') calling upon it to satisfy the order to pay pursuant to their stated obligations under clause 4 of the Motor Insurers' Bureau of Ireland Agreements 1955 to 2009 (' the MIBI Agreements'). The MIBI declined to satisfy the order to pay. Subsequently, the applicant sought the assistance of the State to enforce the order to pay. The MIBI, on legal advice, declined to pay on the grounds that it was not liable. The applicant's solicitor was informed in October, 2014, by the Minister for Finance that the liquidator of Setanta would seek to satisfy each claimant and that thereafter recourse should be had to the Insurance Compensation Fund. Satisfaction by such fund, however, was limited to 65% of the award and costs.

5

The applicant was not content with the decision of the MIBI and the Minister and on 15th December, 2014, he applied for leave to issue proceedings by way of judicial review seeking, inter alia, a declaration that the decision of the respondents was unlawful. A statement of opposition was filed by the MIBI on 24th March, 2015 and by the second to fourth named respondents on 15th April, 2015. The applicant submits that there was a climate of uncertainty surrounding the potential liability of the MIBI and in early 2015 this was acknowledged by the State.

6

On 13th April, 2015, the Accountant of the Courts of Justice, having statutory responsibility to administer the Insurance Compensation Fund, instituted proceedings in the High Court seeking clarification of the potential liability of the MIBI for claims arising from the insolvency of Setanta (hereafter referred to as ' the Accountant's proceedings'). The Law Society of Ireland was joined as a legitimus contradictor. The instant proceedings, on the consent of the parties, were then put on hold pending the outcome of the Accountant's proceedings. That case proceeded through all divisions of the Superior Courts - the High Court ( [2015] IEHC 564), the Court of Appeal ( [2016] IECA 60) and ultimately the Supreme Court ( [2017] IESC 31) which on 25th May, 2017 rejected the claim, holding that the MIBI Agreements applied only to a limited class of cases and did not apply where an insurer was insolvent. The effect of this decision was that the MIBI did not have any liability to such claimants, including the applicant in this case.

7

In July, 2017, the Law Society of Ireland sought its costs as against the MIBI in the Accountant's proceedings but this was refused by the Supreme Court. No order as to costs was made.

8

In this case all matters were placed in issue including the question of whether the MIBI is amenable to the judicial review process. The applicant places significant emphasis on this in its submissions to this Court, and sets out in some detail, and by reference to a significant body of case law, why the MIBI should be amenable to judicial review.

9

In light of the decision of the Supreme Court, the applicant's proceedings effectively came to an end and the only remaining issue to be determined is liability for the costs of the application for judicial review. It has been agreed between the applicant and the second to fifth named respondents that no order as to costs should be made between the parties.

10

The applicant pursues his costs as against the first named respondent who opposes the application, but who does not seek costs against the applicant.

11

Order 99 of the Rules of the Superior Courts, as amended, in so far as it is relevant, provides that generally speaking, the costs of and incidental to every proceeding shall be in the discretion of the court. However, O. 99, r. 1(3), as amended, provides:-

'Subject to sub-rule (4A), the costs of every action, question, and issue tried by a jury shall follow the event unless the Court, for special cause, to be mentioned in the order, shall otherwise direct.'

12

The applicant maintains that special circumstances arise in this case which should be taken into account by the Court in exercising its discretion to award costs, in full or in part, in favour of the applicant. The first named respondent maintains that there are no such circumstances and that the proceedings before the Court are now moot.

13

The special circumstances relied upon by the applicant which he maintains entitles the Court to exercise its discretion to make an award of costs in his favour, include the following:-

a. This application was one of considerable public importance, given the number of other claimants directly affected. Thus the outcome of these proceedings would have assisted in the determination of a liability issue in respect of approximately 1,750...

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