Higgins v The Irish Aviation Authority

• Jurisdiction: Ireland
• Judge: Mr. Justice John MacMenamin
• Judgment Date: 29 July 2022
• Neutral Citation: [2022] IESC 45
• Court: Supreme Court
• Docket Number: S:AP:IE:2021:000056

Between:

Padraig Higgins

Appellant

and

The Irish Aviation Authority

Respondent

[2022] IESC 45

MacMenamin J.

Dunne J.

Baker J.

Woulfe J.

Hogan J.

S:AP:IE:2021:000056

THE SUPREME COURT

Defamation – Damages – Costs – Appellant seeking costs – Whether the appellant had entirely succeeded in the litigation

Facts: The appellant, Captain Higgins, appealed to the Supreme Court against the judgment and order of the Court of Appeal ([2020] IECA 157) in an appeal from the High Court jury award. In the Court of Appeal’s judgment on the costs issue ([2020] IECA 277), Murray J concluded that the justice of the case required that the appellant should retain the costs of the High Court hearing, but that both sides should bear their own costs of the appeal to the Court of Appeal. The substantive appeal judgments delivered by the Supreme Court in the defamation proceedings ([2022] IESC 13) unanimously held that the appeal from the Court of Appeal should be allowed and the judgment of that court set aside. The majority of the Supreme Court substituted an award of €175,000 in general damages in place of the Court of Appeal award of €70,000, and replaced the Court of Appeal award of €15,000 in aggravated damages with an award of €50,000. The Supreme Court found that the discount of 10% made by the jury on damages was appropriate and proportionate. The appellant was awarded €202,500 in net damages. The respondent, the Irish Aviation Authority, accepted that the appellant, as the successful party, should be entitled to whatever reasonable outlay he may have incurred in bringing the appeal as a litigant in person, but submitted that the costs order made by the Court of Appeal should not be disturbed as, in essence, the Supreme Court did not uphold the High Court jury award in totality, and to that extent the Court of Appeal judgment had not been entirely displaced.

Held by MacMenamin J that the only fair conclusion was that the appellant not only succeeded in the appeal from the Court of Appeal, but, for the purposes of ss. 168 and 169 of the Legal Services Regulation Act 2015, had, in fact, “entirely succeeded” in the litigation; he had obtained awards in damages which were appropriate and the discount first identified by the jury had been upheld. Looking at the ultimate outcome, MacMenamin J found that it could not be suggested that the appellant had only been partially successful; the fact that the respondent displaced the jury award in the Court of Appeal must be counter-balanced against the significantly larger award made by the Supreme Court in substitution for that of the Court of Appeal and the outcome seen in its totality. In the radically changed circumstances which existed, MacMenamin J held that it was necessary to vary the Court of Appeal judgment on the costs issue.

MacMenamin J held that the justice of the case required that the appellant would have the costs of the High Court on the main issues, the legal costs of the Court of Appeal, such legal costs as he incurred in the Supreme Court prior to discharging his solicitor, and his own reasonable outlay in the conduct of the appeal as a litigant in person.

Costs awarded to appellant.

Judgment as to Costs of Mr. Justice John MacMenamin dated the 29 ^th day of July, 2022 delivered electronically and with which the other members of the Court agree

1 This is the judgment in relation to costs arising from the substantive appeal judgments delivered by this Court in the defamation proceedings ( [2022] IESC 13).

2 The appeal to this Court was against the judgment and order of the Court of Appeal ( [2020] IECA 157 in an appeal from the High Court jury award. In the High Court, the jury awarded the plaintiff, Captain Higgins, general damages in the sum of €300,000, and aggravated damages of €130,000. Applying a 10% discount under s.22 of the Defamation Act, 2009 (“the Act”), he was awarded €387,000 in total. The Court of Appeal reduced the award in general damages from €300,000 to €70,000; the award in aggravated damages from €130,000 to €15,000, but did not interfere with the 10% discount awarded by the High Court jury on the grounds that the defendant (“the IAA”) had not acted sufficiently quickly in bringing an offer of amends pursuant to s.22 of the Act.

3 Murray J. delivered a closely reasoned judgment for the Court of Appeal on the costs issue ( [2020] IECA 277). He concluded, in the circumstances then obtaining, that the justice of the case required that Captain Higgins should retain the costs of the High Court hearing, but that both sides should bear their own costs of the appeal to the Court of Appeal. The judgment referred to ss. 168 and 169 of the Legal Services Regulation Act, 2015, and adverted to the fact that the IAA had sent a “Calderbank” letter to the plaintiff, however that letter had not conformed to the formal requirements laid down for reliance on a costs application. The judgment made particular reference to the judgment of this Court in MN v. SM (costs) [2005] 4 I.R. 461, in which an award of €600,000 made by the High Court was reduced to €350,000 on appeal. As in this case, the judgment in MN dealt with costs of an appeal where an award is reduced.

4 In MN, Geoghegan J. held that if the plaintiff were to be awarded his costs of the appeal despite the fact that he had sustained a substantial reduction in damages, that might be legitimately viewed as an injustice to the defendant. Any reduction in damages which the defendant would have achieved by his well-founded appeal would have been eaten away by his having to pay two sets of costs. Geoghegan J. observed that, had Calderbank letters been written, this could have had a significant bearing on an award of costs, but this had not been done. In the circumstances, he held each party should bear its own costs on an apportionment of balance of hardship, resulting from the circumstances arising.

5 In the Court of Appeal judgment on this case, Murray J. pointed out that Captain Higgins had not made a counter-offer to the offer in the non-conforming “Calderbank letter”, a step which might have further protected his position (see, Calderbank v. Calderbank [1975] 3 ALL ER 333). As the issue of “offer and counter-offer” has not been argued in this application for costs, I would reserve making any observation on that important point which would require further consideration. The point does not presently arise.

6 The appeal before this Court is unique and without exact precedent in a number of respects. Frequently, in defamation cases an appeal will focus on the trial judge's rulings in the case, or...