Haughey v Synnott

• Jurisdiction: Ireland
• Judge: Ms. Justice Laffoy
• Judgment Date: 08 October 2012
• Neutral Citation: [2012] IEHC 403
• Court: High Court
• Date: 08 October 2012

Haughey (Suing By Herself & Lawline Solicitors) v Synnott

BETWEEN

CAOIMHE HAUGHEY (SUING BY HERSELF AND LAWLINE SOLICITORS)

PLAINTIFF

AND

DAVID SYNNOTT

DEFENDANT

[2012] IEHC 403

[No. 8823 P/2011]

THE HIGH COURT

PRACTICE AND PROCEDURE

Costs

Order - Discretion - Interim and interlocutory relief - Application to appoint receiver and manager - Whether costs should follow event - Whether possible to justly adjudicate upon costs of application - Veolia Water UK Plc v Fingal County Council (No 2) [2006] IEHC 240, [2007] 2 IR 81 and Allied Irish Banks Plc v Diamond [2011] IEHC 505, (Unrep, Clarke J, 7/11/2011) considered - Rules of the Superior Courts 1986 (SI 15/1986), O 99, r 1(4A) - Costs awarded to plaintiff with stay of execution on order until outcome of substantive proceedings (2011/8823P - Laffoy J - 8/10/2012) [2012] IEHC 403

Haughey v Synnott

Facts: The plaintiff had applied ex parte for interim and interlocutory relief, which was considered by the court in October 2011. The defendant had also applied for the appointment of a receiver in the matter, which had been refused in December 2011 (see [2011] IEHC 467).

The matter before the Court in the instant hearing was to determine costs in respect of the aforementioned applications.

Held by Laffoy J, that order 99 of the Rules of the Superior Court was relevant to determining the issue of costs in this matter. Rule 1(4A) of that order stated that costs were to be awarded except where the Court could not determine liability for costs on the interim application(s).

Considering each of the applications in turn, the Court found that costs were to be awarded to the plaintiff, as the defendant had effectively provoked the application by entering offices and interfering with files and IT equipment where it was clear a dispute existed between the parties.

In respect of the defendant's application, the Court had earlier found that the application should be dismissed. There was no injustice likely as a result of determining costs for the application at this point, and so costs would be awarded to the plaintiff.

As the matter as a whole was proceeding to substantive trial, the costs order would be stayed until then.

HAUGHEY (LAWLINE SOLICITORS) v SYNNOTT UNREP LAFFOY 12.12.2011 2011/24/6398 2011 IEHC 467

O.99 1(4)

DELANY & MCGRATH CIVIL PROCEDURE IN SUPERIOR COURTS 3ED 23-42

DELANY & MCGRATH CIVIL PROCEDURE IN SUPERIOR COURTS 3ED 23-52

VEOLIA WATER UK PLC v FINGAL CO COUNCIL (NO2) UNREP LAFFOY 8.10.2012 2012 IEHC 403

POTTERIDGE TRADING LTD & ORS v FIRST ACTIVE 21.2.2008 2008/52/11008 2008 IEHC 42

ALLIED IRISH BANKS v DIAMOND UNREP CLARKE 14.10.2011 2011/3/547 2011 IEHC 505

RSC 1986 O99 1(4)A

LINDLEY & BANKS PARTNERSHIP 19ED 23-120

TWOMEY PARTNERSHIP LAW 2000 20.115

1 Judgment of Ms. Justice Laffoy delivered on 8th day of October, 2012

Purpose of judgment

2 1. The purpose of this judgment is to set out and explain my decision on an application made by the plaintiff for the costs of two aspects of these proceedings which have been dealt with on an interlocutory basis. They are:-

3 (a) The plaintiff's application for interim and interlocutory injunctive relief, which was the subject of an order made on 4 ^th October, 2011, on foot of an application made to the court ex-parte on behalf of the plaintiff, and a further order made on 7 ^th October, 2011, on foot of a notice of motion issued by the plaintiff on 4 ^th October, 2011.

4 (b) An application by the defendant pursuant to a notice of motion dated 12 ^th October, 2011, in which the defendant sought an order for the appointment of a receiver or of a receiver and manager in respect of the assets of the partnership in the solicitors practice known as "Lawline", which application was considered in the judgment which I delivered on 12 ^th December, 2011 (Neutral Citation 2011 IEHC 467), in which, for the reasons outlined therein, I determined that there should be an order dismissing the defendant's application.

5 2. The background to the proceedings and the applications is dealt with in the judgment of 12 ^th December, 2011 (the Judgment), to which I will refer below so far as is necessary.

The relevant provision of the Rules and the relevant jurisprudence

6 3. Order 99 of the Rules of the Superior Courts 1986 (the Rules), which deals with the issue of costs, was amended with effect from 21 ^st February, 2008 by the insertion of rule 1 (4A) which provides as follows:-

"The High Court or the Supreme 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."

7 4. The rationale underlying that rule and the manner in which it has been applied during the past three years is outlined in Delany & McGrath on Civil Procedure in the Superior Courts (3 ^rd Ed.) at paras. 23 - 42 to 23 - 52. The following general commentary on rule 1 (4A) is set out at para. 23 - 43:

"It is clear from the use of the word 'shall' in rule 1(4A) that the effect of the rule is that a court is required to adjudicate upon and make a costs order in respect of an interlocutory application rather than to reserve the costs of the application. However, the Court retains a wide discretion in deciding what costs order to make in respect of the application and the options available include making an order awarding all or part of the costs to one party, making no order as to costs or making the costs of the application costs in the cause. It is only permissible to reserve costs, thereby deferring an adjudication upon the entitlement to costs, where it is not possible, at that juncture, justly to adjudicate upon the costs of the application."

8 Later, (at para. 23 - 44) the authors refer to the...