Gordon v The Irish Racehorse Trainers Association

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Bernard Barton
Judgment Date09 September 2020
Neutral Citation[2020] IEHC 446
Docket NumberRecord No. 2015-1418 P

[2020] IEHC 446

THE HIGH COURT

Bernard Barton

Record No. 2015-1418 P

BETWEEN
CHRIS GORDON
PLAINTIFF
- AND -
THE IRISH RACEHORSE TRAINERS ASSOCIATION
DEFENDANT
Judgment of Mr. Justice Bernard Barton delivered the 9th day of September 2020
Introduction
1

This is the judgment of the Court on the Plaintiff's application for costs at the conclusion of an eight-week trial in defamation proceedings in which the Jury gave a verdict for the Plaintiff on the 25th March 2020. The action was adjourned to facilitate the preparation of submissions.

2

Having succeeded in his claim for damages, the Plaintiff sought orders for the costs of the proceedings to include all reserved costs and costs of discovery together with the costs of an earlier trial, which had had to be aborted. The Defendant opposed the application on a number of grounds and invited the Court to depart from the normal rule that costs follow the event. The essence of the case made in this regard was that the Defendant had in effect succeeded on a number of issues, furthermore the trial had been unnecessarily prolonged by the Plaintiff, accordingly, the costs associated therewith should be awarded or allowance therefore made to the Defendant. It follows that the central question to be addressed on the application for the costs of the proceedings is whether the Court should accede to the Plaintiff's application or exercise its discretion in the manner sought by the Defendant, about which more presently. The costs of the mistrial are a separate issue.

3

For a background to the case and the issues left to the Jury see the judgments of the Court in Gordon v. The Irish Racehorse Trainers Association [2020] IEHC 363 and Gordon v. The Irish Racehorse Trainers Association [2020] IEHC 425. Suffice it to say at this juncture that the case concerned seven defamatory statements five of which had been met, inter alia, with the defence of qualified privilege. The Plaintiff pleaded express malice by the Defendant in the publication of the statements. Of these, the jury found malice proved in the publication of the first, second, fifth and sixth statements but not the seventh.

4

In relation to the third defamatory statement, an article in the August 9th edition of the The Irish Field’ 2014, two issues were left to the Jury, the first, whether the Plaintiff had proved that Noel Meade was speaking on behalf of the Defendant when he made the statements ascribed to him in the article and the second, whether his remarks were understood to refer to the Plaintiff. The Jury answered both questions in the affirmative. The fourth statement, an alleged petition to have the Plaintiff removed as head of security of the Turf Club, was withdrawn from the Jury on the Defendant's application, for insufficiency of evidence. A brief summary of the written and oral submissions made on behalf of the parties follows.

Defendant's Submissions
5

It was submitted by Mr Rogers that in so far as any award for costs was to be made in favour of the Plaintiff, the Court should in the first instance exercise its discretion by restricting the award to Circuit Court costs having regard to the provisions of s. 17 (1) of the Courts Act 1981 as amended by s. 14 of the Courts Act 1991 (the 1981 Act, as amended) and further by making a differential order as to costs in favour of the Defendant having regard to the provisions of s. 17 (5) of that Act. In support of this submission, reliance was placed on a letter written by the Defendant's solicitor, dated 30th January 2020, where it was made clear to the Plaintiff that the Defendant was a company limited by guarantee and that the liability of the members to contribute to its debts was limited to €1500, as a consequence of which no more than this sum could be recovered by way of damages and costs. The letter was written without prejudice save as to costs.

6

Accordingly, if the action was to proceed at all the Defendant sought to have the trial take place in the Circuit Court as the lowest court with jurisdiction in which defamation proceedings could be brought, however, the request was rebuffed, and the trial proceeded in the High Court. It was also contended that as the Plaintiff had prolonged the proceedings unnecessarily, particularly by failing to concede until the conclusion of the evidence that the occasions of publication were privileged, he should bear the associated costs. With regard to the exercise of the Court's discretion the Defendant relied on Mangan v. Independent Newspapers Ltd [2003] 1 I.R.442 and O'Connor v. Bus Atha Cliath [2003] 4 I.R. 459.

7

While recognising that the Jury had awarded damages in the sum of €300,000, an amount well in excess of the Circuit Court jurisdiction, the case made was that notwithstanding the prosecution of the proceedings in the High Court the Plaintiff well knew the maximum which could be recovered on foot of any judgement was €1500. Apart altogether from this aspect of matters, the Court was urged to exercise its discretion by taking into account (i) the issues on which the Defendant had been successful and, as mentioned already, (ii) the failure of the Plaintiff to concede the Defendant's entitlement to rely on the defence of qualified privilege until the closing speeches to the Jury, thereby unnecessarily prolonging the trial. The Defendant sought an order for the resulting costs and for an order setting off the amount thereof against the costs awarded to the Plaintiff.

8

In relation to the first of these, the issues on which the Defendant had been successful, it was argued that the principles set out in Veolia Water UK plc v Fingal County Council (No. 2) [2007] 2 IR 81 (hereinafter Veolia Water) applied and that these had found their way into and were mandated by provisions of s.169 (1) of the Legal Services Regulation Act, 2015 (the 2015 Act). As the Defendant had succeeded in having the 4th statement withdrawn from the Jury and the Plaintiff had failed to prove malice in respect of the seventh statement the time and costs involved in meeting these issues should also be taken into account and awarded or allowance therefore made to the Defendant.

9

With regard to the issue of qualified privilege, it was argued that a definite allowance should be made in accordance with the Veolia Water principles to take account of the unnecessary prolongation of the trial; the concession with regard to qualified privilege made at the conclusion ought properly to have been made at the outset. As to making a definite allowance in relation to these matters, the Court was referred to the judgment of Finlay-Geoghegan J. in Sony Music Entertainment (Ireland) Ltd. v Universal Music Ireland Ltd. [2017] I.E.C.A 96. In making a partial order in favour of the winning party the Court should indicate in its decision the percentage by which the issues won by the losing party contributed to the overall cost of the proceedings and thereupon make a net order.

10

The matter didn't end there. With respect to the 5th statement, the meeting in the Keadeen hotel, it was argued that the Plaintiff advanced a position markedly different from that pleaded at para 12 of the Statement of Claim. Although the Defendant was ultimately unsuccessful on this statement, the stark change from the pleaded position to one which reflected the evidence given at trial was significant and relevant to costs. The argument advanced in support of this contention was that had the Defendant known from the outset the position which the Plaintiff would ultimately adopt at trial in relation to the meeting, aspects of witness evidence could have been shortened or completely avoided, consequently, the resulting additional costs ought not to be visited on the Defendant.

11

In the event, the trial took 30 days whereas when these factors were taken into account it would have taken far less, at which Mr. Rogers suggested twenty days would have been sufficient. Against this estimate, due allowance having been made for the unnecessary waste of court time, the net trial costs to which the Plaintiff was entitled should be limited to 10 days. In this regard I understood the costs in question to be costs the trial if prosecuted in the Circuit Court.

Plaintiff's Submissions
12

Mr. Harty rejected as preposterous the proposition that the Defendant's liability for damages and costs was limited to the amount guaranteed by the Defendant Association's members. He argued that in the context of meeting its just debts a company limited by guarantee was in the same position and was to be treated no differently from a company limited by shares. He drew the attention of the Court to the statement of the law to this effect set out in the 4th edition of Courtney “The Law of Companies” at Chapter 32 para. 32.001. It followed that the proposition advanced on behalf of the Defendant was bad in law and conflated the company's liability to meet its debts as they fell due with the liability of the members to contribute in the event of insolvency.

13

Subject to any stay the Court might impose in the event of an appeal, the Plaintiff was entitled to enforce the judgment by orders of execution in accordance with the Rules of the Superior Court. While the amount guaranteed by the members is limited and payment may be called for in the event of insolvency, this was but one of the sources of funds to which recourse might be had by the Defendant or a liquidator in order to meet its debts. The company may be in control of or have access to considerable funds, such as outstanding membership fees, grants from Horse Racing Ireland or other debtors, assets and /or cash reserves. Neither the nature of the company nor the content of the letter of January 30th. 2020 was relevant to the issue of costs.

14

Mr. Harty also submitted that the Defendant had established no special circumstances, as required by the jurisprudence on the question,...

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2 cases
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    • Ireland
    • High Court
    • 8 March 2021
    ...as the case may be, in respect of the actor omission concerned.” 84 As I observed in Gordon v The Irish Racehorse Trainers Association [2020] IEHC 446 at para 4: “It is infinitely preferable to have serious cases involving causes of action concerned with the vindication of fundamental right......
  • Chris Gordon v The Irish Racehorse Trainers Association
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    • Court of Appeal (Ireland)
    • 27 April 2021
    ...course of the trial and the subsequent judgment of Barton J ordering the defendant to pay the plaintiff’s costs of the action in full ([2020] IEHC 446). The plaintiff sought security for the costs of the appeal. Held by Murray J that the plaintiff’s application for security for the costs of......

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