IBB Internet Services Ltd v Motorola Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Barrett
• Judgment Date: 01 May 2015
• Neutral Citation: [2015] IEHC 445
• Docket Number: [2010 No. 11862P]
• Court: High Court
• Date: 01 May 2015

[2015] IEHC 445

THE HIGH COURT

Barrett J.

[2010 No. 11862P]

BETWEEN:

IBB INTERNET SERVICES LIMITED AND IRISH BROADBAND INTERNET SERVICES LIMITED (TRADING AS IMAGINE NETWORKS) AND IMAGINE COMMUNICATIONS GROUP LIMITED

PLAINTIFFS

AND

MOTOROLA LIMITED

DEFENDANT

Telecommunications – Practice & Procedures – O. 99, r. 1 (4A) of the Rules of the Superior Courts – Award of costs – Relevancy

Facts: The plaintiffs sought an order for costs of their motion for discovery and also the defendant's motion subsequent to the judgment of the Court on the motions of discovery brought by the parties to those proceedings. The defendant contended that the costs of both motions should be costs in the cause and the defendant sought the cost of its motion for discovery.

Mr. Justice Barrett granted the plaintiffs an order for costs of their motion for discovery. The Court also granted the defendant an order for costs of its motion for discovery. The Court refused to accept that the costs of both motions were costs in the cause. The Court observed that factors that must be taken into account while awarding cost were that the costs should follow an event and that the winning party should get full costs provided that it had not materially added the cost to the proceedings by raising frivolous arguments.

Judgment of Mr. Justice Barrett delivered on 1st May, 2015

1 Introduction. This judgment concerns applications for costs that have followed on the judgment of this Court on the motions for discovery brought in IBB Internet Services Limited & Others v. Motorola Limited [2015] IEHC 54 by (a) the Plaintiffs against the Defendant, (b) the Defendant against the first and second-named Plaintiffs and (c) the Defendant against the third-named Plaintiff on similar but not identical form to the application referred to at (b). The Plaintiffs are now seeking an order for costs of the Plaintiffs' motion for discovery and also of the Defendant's motion. The Defendant contends that the costs of both motions should be costs in the cause; in the alternative, and in light of the Plaintiffs' position, the Defendant seeks the costs of the Defendant's motion for discovery. On the consent of the parties the court directed that the determination of the issue of costs should be dealt with by the furnishing of written submissions and replying submissions, without the need for any hearing. Having read and considered those submissions, the court now renders this judgment.

2 The discovery proceedings and prior correspondence. The court's judgment in the discovery proceedings runs to some 84 pages and considers in detail each of the grounds on which discovery was sought. The hearings which preceded that judgment took four days of court-time. The applicable legal principles were not disputed between the parties. Along with a general outlining by each party of its case and its views of the opposing case (in total, this occupied about two of the four days of hearings), the time at the hearings was taken up mostly by argument concerning issues of (i) necessity, (ii) relevance, and (iii) oppression, as they pertained to the various categories of discovery in dispute.

3 The motions for discovery were preceded by an exchange of letters on various dates between 27th May and 3rd July, 2014. Those letters were detailed, running to many hundreds of pages. Further correspondence was exchanged after the issuing of the motions. The motions were preceded by two meetings between the legal advisors to the parties who sought to narrow the issues in dispute. A third meeting followed the issuing of the respective motions but prior to them being heard. As one would hope, some further categories of discovery were, quite appropriately, agreed at this time.

4 The submissions and replying submissions in the hearings ran to many hundreds of pages. Notwithstanding the extensive engagement between the parties on the issues prior to the hearing of the motions, it proved impossible for sufficient consensus to be reached such as would have negated the necessity for the four days of hearings on the applications and issues arising.

5 Applicable legal principles to the within applications for costs. Subject to certain limited exceptions, none of which appear to the court to be relevant for present purposes, Order 99, rule 1(4A) of the Rules of the Superior Courts requires the court to determine costs on an interlocutory application unless it is not possible justly to adjudicate upon same. Without prejudice to the fact that the court's power under Order 99 is ultimately and essentially a discretionary power, the usual practice of the court in applications for costs is that “costs follow the event”.

6 The decision in Veolia Water. In Veolia Water U.K. plc v. Fingal County Council (No.2) [2007] 2 I.R. 81, Clarke J. outlined a number of relevant considerations that arise in applications for costs in more complex cases. These can be summarised as follows. First, the overriding principle is that “costs follow the event”. Second, the party who wins the “event” should get full costs. Third, the court should consider departing from awarding full costs to such a party where it is clear that it materially added to the costs of the proceedings by raising arguments or grounds found by the court to be unmeritorious; in doing so the court should focus on whether the costs of the proceedings as a whole were materially increased. Fourth, there can be other factors relevant to the award of costs. Less than a decade after Clarke J. made his observations in Veolia (No.2), they are now cited in so many applications for costs and have been relied upon in so many prominent cases ( e.g. Kavanagh v. Ireland & Ors [2007] IEHC 389 (Smyth J.), Mennolly Homes Ltd. v. Appeal Commissioners [2010] IEHC 56 (Charleton J.), and McAleenan v. AIG (Europe) Ltd. [2010] IEHC 279) (Finlay Geoghegan J.)) that it does not seem premature to state that those observations ought now to be treated as, and in truth are, representative – indeed they were likely to some extent determinative – of current settled practice in this area.

7 What is the “event”? Clarke J. recognised in Veolia (No. 2), at para.2.6, that it was increasingly the case that due to the...