Hafeez v CPM Consulting Ltd
| Jurisdiction | Ireland |
| Judge | Mr Justice David Keane |
| Judgment Date | 18 November 2020 |
| Neutral Citation | [2020] IEHC 583 |
| Docket Number | [2020 No. 6367P] |
| Court | High Court |
| Date | 18 November 2020 |
[2020] IEHC 583
David Keane
[2020 No. 6367P]
THE HIGH COURT
CHANCERY
On 28 October 2020, I gave judgment refusing Mr Hafeez an interlocutory injunction against CPM Consulting Limited (‘CPM’). This ruling should be read in conjunction with that judgment, which can be found under the neutral citation [2020] IEHC 536. In accordance with the joint statement made by the Chief Justice and the Presidents of each court jurisdiction on 24 March 2020 on the delivery of judgments during the COVID-19 pandemic, I invited the parties to seek agreement on any outstanding issues, including the costs of the application, failing which they were to file concise written submissions, which would then be ruled upon remotely unless a further oral hearing was required in the interests of justice.
Regrettably, I have received no communication from either of the parties and neither has filed written submissions with the fourteen-day period stipulated.
i. applicable rules and principles
Order 99, rule 2(3) of the Rules of the Superior Courts (‘RSC’), as inserted by the Rules of the Superior Courts (Costs) 2019 (S.I. No. 584 of 2019), reproduces the former O. 99, r. 1(4A), which had been introduced by the Rules of the Superior Courts (Costs) 2008 (S.I No. 12 of 2008). That rule states in material part:
‘The High 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.’
Order 99, rule 3(1) of the RSC provides in material part:
‘The High Court, in considering the awarding of the costs of any action or step in any proceedings … in respect of a claim or counterclaim, shall have regard to the matters set out in section 169(1) of the [Legal Services Regulation Act 2015], where applicable.’
Section 169(1) of the Act of 2015 states:
‘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 than one of the parties was or were unreasonable in refusing to engage in the settlement discussions or in mediation.’
Thus, the rule is that the costs of an interlocutory application (including an interlocutory injunction application) must be awarded to the party who is successful against the party who is not successful, unless having regard to the nature and circumstances of the case and the conduct of the parties it is just to order otherwise, and an award of costs must be made unless it is not possible to do so justly at the interlocutory stage.
As Murray J explained in Heffernan v Hibernia College Unlimited Company [2020] IECA 121 (Unreported, Court of Appeal, 29 April 2020) (at para. 29), in respect of the former O. 99, r. 1(4A):
‘That provision reflected both the preference articulated in the case law pre-dating [its introduction] that those bringing and defending interlocutory applications should face a costs risk in the event that the Court determines that the stance they adopted was wrong ( Allied Irish Banks v Diamond (Unreported, High Court, 7 November 2011) at p. 6 of the transcript of the ex tempore judgment of Clarke J.), and the fact that there will be cases in which it is not possible to determine where the proper burden of the costs of an interlocutory application should lie without the benefit of discovery, a complete marshalling by the parties of relevant evidence and in some cases an oral hearing ( Dubcap Ltd v Microchip Ltd (Ex tempore Unreported, Supreme Court, 9 December 1997 at p.4)).’
In the earlier Supreme Court decision in ACC Bank plc v Hanrahan [2014] 1 IR 1, Clarke J had elaborated on the basis for the introduction of O. 99, r. 1(4A) in the following terms (at 5-6):
‘[8] The reason for the introduction of that rule seems to me to be clear. While, historically, there had been a tendency to reserve the costs of most motions to the trial judge, a view has been taken that this can lead to injustice for, at least in very many cases, a judge who has heard a motion is in a better position than the trial judge to consider the justice of where the costs of that motion should lie. This will especially be so in cases where the trial court will not have to revisit the merits or otherwise of the...
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Thompson v Tennant
...or to be made costs in the cause. The defendants’ submission also referred to a judgment of Keane J in Hafeez v CPM Consulting Ltd [2020] IEHC 583 in which a “calibrated” order for costs was made under which the successful defendant’s costs, but not those of the plaintiff, were made costs i......