Halpin and Others v Everyday Finance DAC and Others; Stairway Property Company Ltd v Halpin and Others

• Jurisdiction: Ireland
• Court: High Court
• Judge: Ms Justice Nessa Cahill
• Judgment Date: 02 May 2025
• Neutral Citation: [2025] IEHC 256
• Docket Number: Record Number 2023 4748 P

Patrick Halpin, Ann Keane, Elektron Holdings Limited

Plaintiffs

and

Everyday Finance DAC, Stairway Property Company Limited, The Attorney General and Ireland

Defendants

Between:

Stairway Property Company Limited

Plaintiff

and

Patrick Halpin, Ann Keane, Elektron Holdings Limited (In Receivership) and Madison Manor Limited

Defendants

[2025] IEHC 256

Record Number 2023 4748 P

Record no. 2023 5300 P

THE HIGH COURT

Constitutional challenge – Possession – Costs – Defendants seeking costs – Whether costs should be allocated in a manner that reflected the fact that the defendants did not succeed in certain preliminary issues they advanced

Facts: Two cases concerned the ownership and occupation of a property at Park Avenue, Sandymount in Dublin 4 (the Property). The first case (bearing record number 2023/4748 P) consisted of a constitutional challenge to s. 19(1) and (21) of the Conveyancing Act 1881 and certain other claims (the Constitutional Challenge). The plaintiffs were Mr Halpin, Ms Keane and Elektron Holdings Ltd (Elektron) (the Constitutional plaintiffs). The defendants were Stairway Property Company Ltd (Stairway), Everyday Finance DAC (Everyday), Ireland and the Attorney General (the State). The second case (bearing record number 2023/5300P) was Stairway’s application for possession of the Property (the Possession Proceedings). The defendants to the Possession Proceedings (the Constitutional plaintiffs and Madison Manor Ltd (Madison) (the Plaintiffs)) also issued a counterclaim against Everyday (the Counterclaim). The High Court (Cahill J) dismissed the Constitutional Challenge and the Counterclaim and granted the relief sought in the Possession Proceedings. The focus of the costs hearing was on the contention that costs should be allocated in a manner that reflected the fact that the Defendants did not succeed in certain preliminary issues they advanced. It was said that there should be a reduction of some 20% based on that percentage having been applied to the costs awarded in Pepper Finance Corporation (Ireland) DAC v Persons Unknown [2022] IECA 170.

Held by Cahill J that: (1) the background to several of the preliminary objections was necessary terrain to cover; (2) the exercise of assessing several of the preliminary issues was important and assisted in framing the scope of the proceedings and the correct approach to their resolution; (3) the Defendants did succeed in relation to certain preliminary issues; (4) the unsuccessful preliminary objections to the Constitutional Challenge occupied some 13 pages of the 103-page Judgment; and (5) the only misgivings which Cahill J identified in the Judgment (and during the hearing) about the conduct of the proceedings related to how they were approached by the Plaintiffs. Cahill J held that the approach taken by the Plaintiffs to those aspects of the conduct of the proceedings added to their length and complexity and the overall approach taken created a real difficulty in disentangling the issues for determination; this, more than the failed preliminary objections, contributed to the costs of the proceedings.

Cahill J held that while Everyday, Stairway and the State were partially successful in the proceedings, the correct orders were that: (a) Mr Halpin, Ms Keane and Elektron are liable for the reasonable costs of each of the Defendants to the Constitutional Challenge, including all reserved costs; (b) Mr Halpin, Ms Keane, Elektron and Madison are liable for the reasonable costs of Stairway and Everyday in the Possession Proceedings, including the costs of the Counterclaim, to include all reserved costs.

Costs awarded to defendants.

JUDGMENT of Ms Justice Nessa Cahill delivered on 2 May 2025

Introduction

1 By this judgment, I determine the allocation of liability for the costs incurred by the parties in the above proceedings. This determination is made on foot of the substantive judgment delivered on 8 April 2025 in these matters (“ the Judgment”).

2 The two cases concerned, in broad terms, the ownership and occupation of a property at Park Avenue, Sandymount in Dublin 4 known as “ Aberdeen Lodge” which consists of a sixteen-bedroom guesthouse and private residential accommodation (“ the Property”).

3 The first case (bearing record number 2023/4748 P) consists of a constitutional challenge to sections 19(1) and 19(21) of the Conveyancing Act 1881 and certain other claims (“ the Constitutional Challenge”). The plaintiffs are Mr Halpin, Ms Keane and Elektron Holdings Limited (“ Elektron”) (“ the Constitutional Plaintiffs”). The defendants are Stairway Property Company Limited (“ Stairway”); Everyday Finance DAC (“ Everyday”); Ireland and the Attorney General (“ the State”).

4 The second case (bearing record number 2023/5300P) is Stairway's application for possession of the Property, which was issued some five weeks after the Constitutional Challenge (“ the Possession Proceedings”). The defendants to the Possession Proceedings (the Constitutional Plaintiffs as well as another company, Madison Manor Limited (“ Madison”), referred to for the purpose of this judgment together as “ the Plaintiffs”) also issued a counterclaim against Everyday (“ the Counterclaim”).

5 There were a number of preliminary applications in the Constitutional Challenge and a number of additional issues arose in the course of the seven-day hearing of the Proceedings which needed to be determined in the Judgment.

6 Following consideration of all issues raised, the Constitutional Challenge and the Counterclaim were dismissed and the relief sought in the Possession Proceedings was granted. Accordingly, the Plaintiffs failed in all of the claims they made and also failed in their opposition to the only relief sought against them, the orders of possession in the Possession Proceedings.

7 Against this background, there was a contested costs application before me on 30 April 2025.

Summary of the Costs Application

8 Counsel for the Plaintiffs made an initial application for there to be no order as to costs. This application had no basis in fact or in law and was wisely not pressed.

9 The focus of the costs hearing was on the contention that costs should be allocated in a manner that reflected the fact that the Defendants did not succeed in certain preliminary issues they advanced. Reliance was placed on Veolia Water UK plc v. Fingal County Council [2007] 2 IR (“ Veolia”).

10 It was said that there should be a reduction of some 20% based on that percentage having been applied to the costs awarded in Pepper Finance Corporation (Ireland) DAC v. Persons Unknown [2022] IECA 170 (a case on which reliance was placed during the hearing: see Judgment ¶410).

11 Counsel for Stairway opposed this application on three grounds. First, it was said that a broad-brush approach should be taken, as mandated by Word Perfect Translation Services Limited v. Minister for Public Expenditure and Reform [2023] IECA 189 (“ Word Perfect”).

12 Second, it was said that many of the preliminary issues (the question of the application of Henderson v. Henderson (1843) 3 Hare 100 in particular) concerned other proceedings which would have needed to be explained and examined as part of the context of these Proceedings even absent any preliminary issue being raised.

13 Third, it was said that the amount of time specifically devoted to the preliminary issues was comparatively limited.

14 Counsel for Everyday also opposed the Plaintiff's application, echoing the position of Stairway, and adding that it was justified and reasonable to raise the preliminary issues, including because there was an obvious question of the standing of a company to make the constitutional claims made. It was also pointed out that there is a history of serial litigation, as identified in the Judgment, and that the objections based on Henderson v. Henderson were justified and reasonable.

15 The point was made that the vast majority of the evidence and oral submissions were directed to issues on which Everyday was entirely successful and that the preliminary issues on which Everyday did not succeed did not impact on the allocation of costs or warrant any discounted award of costs. It was said that a discount for the proportion of the written submissions that dealt with preliminary issues could at most be contemplated, but this was said not to be justified.

16 The judgment of the Court of Appeal in Scully v. Coucal Limited [2024] IECA 146 (“ Scully”) was opened by counsel for Everyday.

17 Counsel for the State adopted the same position as the other defendants, opposing any reduction in the award of costs, and emphasising the reasonable approach taken by the State in relation to the Proceedings, including in its facilitative approach to the preliminary issues.

Legal Principles

18 There was – and could be — no dispute between the parties about the Court's broad discretion with regard to the award of costs, confirmed by Order 99, Rule 2 of the Rules of the Superior Courts and sections 168 and 169 of the Legal Services Regulation Act 2015 (“ the Act of 2015”).

19 Order 99, Rule 2(1) sets out the general, overarching principle that, except where otherwise provided, “ The costs of and incidental to every proceeding in the Superior Courts shall be in the discretion of those Courts respectively.”

20 Order 99, Rule 3(1) provides,

“ The High Court, in considering the awarding of the costs of any action or step in any proceedings, and the Supreme Court and Court of Appeal in considering the awarding of the costs of any appeal or step in any appeal, in respect of a claim or counterclaim, shall have regard to the matters set out in section 169(1) of the 2015 Act, where applicable.”

21 The “ matters set out in” section 169(1) of the Act of 2015 include the following:

“ A party who is entirely successful in civil proceedings is entitled to an award of costs against...