Greenville Primary Care Limted v Infrastructure Investment Fund ICAV

• Jurisdiction: Ireland
• Judge: Mr. Justice Allen
• Judgment Date: 15 February 2023
• Neutral Citation: [2023] IECA 28
• Court: Court of Appeal (Ireland)
• Docket Number: Appeal Number: 2021/298

Between

Greenville Primary Care Limted

Plaintiff/Appellant

and

Infrastructure Investment Fund ICAV

Defendant/Respondent

[2023] IECA 28

Collins J.

Whelan J.

Allen J.

Appeal Number: 2021/298

THE COURT OF APPEAL

CIVIL

Costs – Stay – Security for costs – Appellant seeking a stay on execution of the order for the costs of the appeal pending a possible application to the Supreme Court for leave to appeal against the judgment and order of the Court of Appeal – Whether the appellant had identified an arguable ground of appeal

Facts: The Court of Appeal, on 8th December, 2022, concluded that an appeal by the appellant, Greenville Primary Care Ltd, against an order of the High Court requiring the appellant to provide security for the costs of the respondent, Infrastructure Investment Fund ICAV, should be dismissed: [2022] IECA 281. By letter dated 15th December, 2022, the appellant’s solicitors indicated that the appellant did not oppose the making of an order for the respondent’s costs of the appeal but asked that a stay be put on execution of the order for a period of twenty one days and, in the event of an application to the Supreme Court for leave to appeal, then until the determination by the Supreme Court of any such application. The appellant’s solicitors indicated that the appellant was satisfied for the court to deal with the request for a stay without a hearing, if possible. The respondent’s solicitors replied promptly by letter dated 19th December, 2022. The respondent opposed the application for a stay. The respondent’s solicitors referred to the decision of the Court of Appeal in Re Lobar Ltd [2018] IECA 129 in which Irvine J set out the principles to be applied on an application for a stay pending appeal. The respondent’s solicitors made the point first, that the appellant had not engaged with those principles in any way and secondly, that in the event that no bona fide ground of appeal is demonstrated, that is the end of the stay application. The respondent’s solicitors also made the point that the availability of a further appeal to the Supreme Court is limited to decisions of the Court of Appeal which involve a matter of general public importance or in which a further appeal is necessary in the interests of justice. Although the appellant had not engaged with the issue, the respondent’s solicitors argued that it was readily apparent from the judgment of 8th December, 2022 that the appeal concerned the application of well-established principles concerning the provision of security for costs by a corporate plaintiff to the facts of the individual case. Reference was made to the determination of the Supreme Court in Rayan Restaurant Ltd v Kean [2016] IESCDET 78.

Held by Allen J that he was satisfied that the respondent’s succinct and focused objection was correct; the appellant had not identified an arguable ground of appeal and that was the end of the stay application. In any event, Allen J found it difficult to contemplate that the respondent might have its bill drawn and adjudicated before the Supreme Court might have determined any leave application.

Allen J held that the order would show that the appellant’s appeal against the judgment and order of the High Court of 11th November, 2021 was dismissed; that the order of the High Court – including as to the costs of the respondent’s motion for security for costs – was affirmed; that appellant should pay the respondent’ costs of the appeal; that the appellant’s application for a stay on execution of the order for the costs of the appeal pending a possible application to the Supreme Court for leave to appeal against the judgment and order of the Court of Appeal was refused; and that the appellant should...