IELCA 15 - Murphy -v- O'Connor

• Year: 2012
• Decision Date: 11 January 2012

[2012] IELCA 15

THE HIGH COURT2007 No 4081

SEAN MURPHY AND DEIRDRE MURPHYPLAINTIFFS

V

DEIRDRE M O’CONNOR AND DAMHNAIT B MCLAUGHLIN TRADING AS D M

O’CONNOR AND CO, GERARD O’DONNELL, EMILIE WATERS, FIDELMA WALDRON

AND SORCHA BURKE TRADING AS O’DONNELL WATERS, PAUL LENNON TRADING

AS MURRLEN DESIGN ARCHITECTURAL ENGINEERING CONSTRUCTION ANDC&

DEVELOPMENTS LIMITEDDEFENDANTS

EX TEMPORE PRELIMINARY RULING

This Bill of Costs is taxed pursuant to an Order made on 11thJanuary 2012 wherein it was

ordered that “the Plaintiffs’ costs (to include all or any reserved costs and costs of

discovery herein) be taxed and that the First, Second and Seventh named Defendants do

pay the said costs when taxed and ascertained.”

The Bill of Costs came before me for taxation today, 26 June 2012, with the solicitor for

costs, V P McMullin, represented by Mr Daragh O’Sullivan of Lowes, Legal Cost Accountants

and the Paying Party, the First Second and Seventh named Defendants, represented by Mr

Ryan Fitzgerald of DFG, Legal Costs Accountants.

At the outset of the taxation, Mr Fitzgerald on behalf of the Paying Party raised an issue

regarding the applicability of Section 78 of the Courts of Justice Act, 1936 and he sought a

preliminary ruling on the issue prior to the taxation of the Bill of Costs proceeding further.

The first and second named plaintiffs had instituted proceedings seeking damages for

breach of contract against eight named defendants. The proceedings were at hearing for

three days in November 2011 and on the third day, the matter was compromised on the

basis that the sum of €200,000 in respect of damages was to be paid to the plaintiffs; the

proceedings were to be withdrawn against the first, second, third, fourth, fifth, sixth and

seventh named defendants; and all issues as between the defendants and the action as

against the eighth named defendant were to be struck out of the list.

Mr Fitzgerald on behalf of the paying party submitted that the paying party is only

responsible for the costs incurred by the plaintiffs in pursuing their claim against the first

second and seventh named defendants and that the solicitor for the costs is not entitled to

recover from the first second and seventh named defendants, the costs incurred by the

plaintiffs in pursuing their claim against the third, fourth, fifth, sixth and eighth named

defendants. He submitted that there was an automatic limitation to the Costs Order under

section 78 of the Courts of Justice Act 1936 and in support of his contention, Mr Fitzgerald

referred to the case of Maher v The Great Northern Railway Company (Ireland) Ltd and

John Warren 1942and a ruling given in the taxation case of Patrick Corcoran v Aer Lingus

and Dublin Airport Authority plc.

Mr Sullivan on behalf of the solicitor for the costs submitted that the terms of the

settlement reached between the parties on 23 November 2011 required the first second

and seventh named defendants to pay all the costs of the plaintiffs and that the order for

costs is not limited to the costs of the plaintiffs in pursuing their claim against the first

second and seventh named defendants only.

The Bill of Costs is to be taxed pursuant to an Order of the High Court made on 11 January

2012. The Order states that the plaintiffs’ costs “to include all or any reserved costs and

costs of discovery herein be taxed (and) that the first second and seventh named

defendants do pay the said costs when taxed and ascertained”. The Order does not contain

any limitation restricting the plaintiffs’ costs to the costs incurred by theplaintiffs as

against the first second and seventh named defendants.