Greenwich Project Holdings Ltd v Con Cronin
| Jurisdiction | Ireland |
| Judge | Ms. Justice Máire Whelan |
| Judgment Date | 19 December 2022 |
| Neutral Citation | [2022] IECA 291 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Appeal Number: 2021/73 |
[2022] IECA 291
Whelan J.
Faherty J.
Binchy J.
Appeal Number: 2021/73
THE COURT OF APPEAL
UNAPPROVED
JUDGMENT of Ms. Justice Máire Whelan delivered on the 19th day of December 2022
Judgment on the substantive appeal was delivered by this court on the 6th July, 2022. This judgment is directed toward the proper allocation of costs arising therefrom.
Three distinct aspects required consideration in relation as to liability for costs:
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(i) High Court costs arising in respect of the respondent's motion seeking to dismiss the appellant's claim for want of prosecution arising from procedural failures and alleged non-compliance with the terms of an order made by Jordan J. in the High Court on the 8th July, 2019. The said motion was brought based on the Tracey v McDowell [2016] IESC 44 jurisprudence. The said application was successful in the High Court [2021] IEHC 33 where an order dismissing the proceedings was granted. The said order was reversed by this court in the within appeal [2022] IECA 154. The High Court had made an order granting the respondent his costs of that motion. The respondent seeks to retain the said order as to costs of the application notwithstanding that same was reversed on appeal.
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(ii) The appellant had brought a motion before the High Court in February 2021 seeking that the trial judge revisit its judgment [2021] IEHC 33 which had been delivered on the 20th January, 2021. The High Court delivered a further judgment [2021] IEHC 145 refusing to revisit its earlier judgment. The appellants appealed unsuccessfully to this court against same. Para. 128 of the judgment of this court [2022] IECA 154 delivered on the 6th July, 2022, provides:
“… the respondent is entitled to his costs in the High Court and in this court in relation to the appellant's application to reopen the proceedings which culminated in the judgment of Hyland J. dated 3rd March, 2021. Payment of the said costs to be stayed pending the conclusion of the within proceedings.”
Neither side appear to contest the said proposed order in regard to the appeal against the refusal of the motion to review the High Court judgment of 20th January, 2021. Accordingly, this aspect of costs is not in issue now.
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(iii) With regard to the substantive appeal, judgment was delivered on 6th July, 2022 [2022] IECA 154 wherein the appellant succeeded in reversing the orders of the High Court which had dismissed the proceedings based on the Tracey jurisprudence as stated above.
This court identified a preliminary view as to costs of the substantive appeal — (iii) above — at para. 129 of the judgment as follows:
“… the appellant is not entitled to its costs in respect of the aspects of the appeal wherein it has succeeded. I am satisfied that the appropriate order, both in the High Court and this Court, is that there be no order as to costs (save as provided at para. 128 above in relation to the Revisit Judgment) in circumstances where the appellant pursued a whole variety of grounds which were clearly not maintainable and has succeeded on a limited basis principally in regard to the issue of proportionality.”
Additional reasons identified for refusing to make an order for costs in favour of the successful appellant and identifying reasons for the purposes of s. 169(1) of the Legal Services Regulation Act, 2015 as to why no order as to costs should be made in its favour were stated to include:—
“… the conduct of the appellant has not been satisfactory in the context of the pursuance of the proceedings from the date of their institution to date. The delays are exceptional and for the most part unwarranted and were both inordinate and inexcusable. Having instituted the proceedings and effected the sterilisation of the property by the registration of a lis pendens which was kept in place for over four years, the appellant exhibited no enthusiasm in pursuing its damages claim. I am satisfied it was not reasonable for the appellant to raise, pursue and contest a whole variety of issues in this appeal, including the nature and extent of the failures to comply with the relevant Court order and contending that its omissions were not serious or significant in that regard. Greenwich denied the significance of its own failures and conveyed a cavalier approach to the Rules of the Superior Court. Arguing that its failure to comply with the Directions Order was not persistent notwithstanding that same continued for many months beyond the deadline specified on the face of the order — and asserting that its explanations were legitimate for the failures when clearly, they were not, was sub-optimal and wasteful.” (para. 129).
In respect of costs of the substantive appeal in this court, neither the appellant nor the respondent advanced any argument opposing the proposed order to make no order as to costs as outlined above. Accordingly, no issue arises for determination in respect of same.
Therefore, only the issue of costs at (i) above remains to be determined. The respondent asserts entitlement to costs of bringing the said motion, notwithstanding that the order granted by the High Court dismissing the proceedings was subsequently reversed by this court. In issuing its motion before the High Court, the respondent invoked the Tracey jurisdiction and thereby sought a dismissal of the appellant's proceedings by reason of the procedural failures of the appellant to comply with orders made by Mr. Justice Jordan in the High Court on the 8th July, 2019.
The respondent's motion to dismiss involved the invocation of the jurisprudence derived from the decision of the Supreme Court in Tracey v McDowell [2016] IESC 44. Such an application involves the invocation of the inherent jurisdiction of the court to strike out proceedings for reasons or bases that typically fall outside Order 19, rule 28 of the RSC. The precise limits and scope of the Tracey jurisdiction have not been defined. Clarke J. (as he then was) at para 5.8 cautioned that “… the response of a judge to a significant or persistent procedural failure in the course of case management must be proportionate in all the circumstances of the case…”
A successful invocation of the Tracey principles will result in a dismissal of the proceedings. Such an outcome carries potentially existential consequences for any litigant and hence in that context an approach to the issue of costs where such an application has been found not to have been validly brought or otherwise has not succeeded requires to be treated differently to outcomes that may arise in the context of costs applications in interlocutory type applications.
In his submissions the respondent contends that this court ought to award him the High Court costs of bringing the motion for non-compliance with the Directions Order aforesaid “… by reason of the clear and unambiguous findings of non-compliance with a court order and cumulative delay in the conduct of the proceedings.”
The respondent invokes the decision in Moorview Developments Limited v First Active Plc. [2011] IEHC 117 where at para. 4.12 Clarke J. (as he then was) emphasised that the deterrent quality that an order for costs may have in certain instances:
“…Courts have consistently expressed the view that procedural failures (even relatively serious ones) should not be met by orders which would affect the likely outcome of the proceedings per se, but rather should be dealt with by means of costs orders if at all possible. The deterrent of making a party have to pay any costs incurred by its own procedural failures is important. Likewise, it is important that procedural failures should not get in the way of coming to a just result for the case as a whole unless those procedural failures have made it difficult to give a fair trial. However, if parties are effectively absolved from the practical consequences of any costs orders, then it is difficult to see how a practice which confined the court to dealing with procedural failure through costs orders could be justified.”
The respondent advances the extensive procedural delays on the part of the appellant and the cumulative impact of same over the years as an alternative basis for awarding the respondent his costs in bringing the within High Court motion albeit that the orders made were set aside in their entirety in this appeal. Reliance was placed on the Supreme Court decision in Lismore Builders Limited (in Receivership) v Bank of Ireland Finance Limited & Ors. [2013] IESC 6 in that regard. It was...
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