Inland Fisheries Ireland v Ó'Baoill

• Jurisdiction: Ireland
• Judge: Ms. Justice Máire Whelan
• Judgment Date: 15 March 2023
• Neutral Citation: [2023] IECA 58
• Court: Court of Appeal (Ireland)
• Docket Number: Appeal Number: 2020/133

Between/

Inland Fisheries Ireland

Respondent

and

Peadar Ó'Baoill, John Gerard Boyle and John Boyle

Appellants

[2023] IECA 58

Murray J.

Whelan J.

Faherty J.

Appeal Number: 2020/133

THE COURT OF APPEAL

Summary judgment – Injunctions – Costs – Respondent seeking costs – Whether costs should follow the event

Facts: The appellants, Mr O'Baoill and Messrs Boyle, appealed to the Court of Appeal against a judgment delivered by Pilkington J in the High Court on the 12th December, 2019 together with consequential orders perfected on the 10th June, 2020 granting orders and reliefs sought by the respondent, Inland Fisheries Ireland, on foot of a motion seeking summary judgment which issued on 31st January, 2018. The proceedings were instituted in June 2009. They concerned fishing rights on the Gweebarra River, a spate river which entered the sea in north Donegal near Doochary Bridge. No ground of appeal by the appellants met with success before the Court of Appeal and judgment was delivered on the 18th November, 2022: [2022] IECA 266. With regard to the High Court costs an order for costs had been made against the appellants by the trial judge. The Court of Appeal upheld that order. The Court’s provisional view was that the respondent was entitled to the costs of the appeal having due regard to the provisions of s. 169 of the Legal Services Regulation Act 2015 and O. 99 of the Rules of the Superior Courts. That view was based on the essential premise that the respondent had been entirely successful in its opposition to the appeal. The appellants, whilst accepting the general principle that costs follow the event, contended that they could identify good and substantial reasons why the Court might depart from the said principle, including as follows: (a) the special and unusual circumstances of the case; (b) the public interest; (c) the “test case” nature of the litigation; and (d) certain special factors said to engage the discretion of the Court pursuant to s. 169(1) of the 2015 Act including in particular (i) the conduct of the appellants before and during the proceedings, (ii) the reasonableness of the appellants in raising, pursuing and contesting issues in the proceedings, and (iii) the manner in which the appellants conducted all or any part of the case. Thus the appellants asserted that the Court might deviate from the normal procedure having due regard to s. 169(1)(a), (b) and (c) of the 2015 Act.

Held by Whelan J that the orders made in the High Court in respect of costs would stand. Whelan J found that the appellants had offered no legitimate basis for why the Court of Appeal might deviate from the essential rule enshrined in s. 169(1) of the 2015 Act that costs should follow the event. Whelan J held that the respondent had been entirely successful in opposing the appeal and was entitled to its costs as against the appellants jointly and severally as appellants who were not successful in the proceedings. Whelan J found that no basis had been identified for contemplating or entertaining any alternative order. Whelan J held that the conduct both before and during the proceedings on the part of the respondent was not in any way blameworthy. Further, Whelan J was satisfied that it was not reasonable for the appellants to raise, pursue and contest all of the issues agitated in the counterclaim in circumstances where those issues had had to be dismissed and struck out by the courts. Whelan J held that the manner in which the appellants conducted the litigation serially raising and pursuing discrete issues based on various, said to be recently discovered documents was unsatisfactory, added to the burden of costs, escalated delay and created a significant impediment in the expeditious conclusion of the litigation.

Whelan J held that the respondent was entitled to an order for costs as against the appellants in respect of the appeal, to include the costs of the submissions in respect of the issue of costs, for which the appellants were to be jointly and severally liable, said costs to be ascertained in the ordinary way in default of agreement.

Costs awarded to respondent.

JUDGMENT of Ms. Justice Máire Whelan delivered on the 15th day of March 2023

Introduction

1 . This judgment pertains to the issue of the proper allocation of costs of the within appeal, in respect of which judgment was delivered on the 18 ^th day of November, 2022. At issue was the entitlement of the respondent to obtain injunctive relief restraining the appellants from asserting fishing rights over part of the Gweebarra River in north Donegal. The proceedings have had a long and involved history, including an extensive reserved judgment of Ms. Justice Laffoy delivered on the 19 ^th December, 2012 after the conclusion of a six day hearing. The Supreme Court thereafter dismissed the appellants' application, inter alia, to adduce new evidence in support of their claims and assertions — reported at Inland Fisheries Ireland v Ó'Baoill & Ors. [2015] 4 IR 132. The appellants then withdrew their substantive appeal against the judgment and orders of Laffoy J.

2 . In 2018 the respondent invoked the summary jurisdiction of the court in light, inter alia, of the decision in Abbey International Finance Limited v Point Ireland Helicopters Limited [2012] 2 IR 694 seeking a direction that its entitlement to certain reliefs sought at paras.1, 3, 4 and 5 of the Writ be heard on affidavit only. The appellants strenuously resisted the said application seeking, inter alia, to adduce further new evidence said to have come to light more recently and at all events subsequent to the conclusion of the previous appeal before the Supreme Court.

3 . The matter came on for hearing before Pilkington J. and in her judgment dated the 12 ^th December, 2019 [2019] IEHC 943. Having made certain orders on consent pertaining to the map to be annexed to the orders as made she granted a declaration that the appellants did not have the right to fish the Gweebarra fishery in question shown on the relevant map without a permit issued by or with the authority of Inland Fisheries Ireland (the respondent). She further granted, inter alia, a perpetual injunction restraining the appellants and all persons acting in concert with them together with all persons having notice of the making of the said order from entering upon and/or fishing the Gweebarra Fishery without individual permits issued with the authority of Inland Fisheries Ireland. Further perpetual injunctions were granted which in substance recognised the entitlement of Inland Fisheries Ireland to control fishing of the said fishery to persons holding valid permits from Inland Fisheries Ireland. The appellants launched extensive appeals. The appellants appealed to this court. No ground of appeal by the appellants met with success before this court and the judgment of this court was delivered as aforesaid [2022] IECA 266.

High Court costs

4 . With regard to the High Court costs an order for costs had been made against the appellants by the trial judge. This court in its judgment (para. 157) upheld the said order, finding that the trial judge was entitled to make the said orders as she did in circumstances where a number of concessions had been made by the respondent in relation to the costs of the action.

Costs of this appeal

5 . The court's provisional view was that Inland Fisheries Ireland was entitled to the costs of the appeal having due regard to the provisions of s. 169 of the Legal Services Regulation Act, 2015 and O. 99 of the Rules of the Superior Courts. That view was based on the essential premise that the respondent had been entirely successful in its opposition to the within appeal. The appellants, whilst accepting the general principle that costs follow the event, contend that they can identify good and substantial reasons why this court might depart from the said principle, including as follows:-

Thus the appellants assert that the court might deviate from the normal procedure having due regard to s. 169(1)(a), (b) and (c) of the Legal Services Regulation Act, 2015.

• (a) the special and unusual circumstances of the case;

• (b) the public interest;

• (c) the “test case” nature of the litigation; and

• (d) certain special factors said to engage the discretion of this court pursuant to s. 169(1) of the Legal Services Regulation Act, 2015 including in particular:

  • (i) conduct of the appellants before and during the proceedings;

  • (ii) reasonableness of the appellants in raising, pursuing and contesting issues in the proceedings;

  • (iii) the manner in which the appellants conducted all or any part of the case.

Submissions and arguments of the appellants

6 . The appellants trace the history of the litigation, indeed reaching back prior to the institution of the proceedings before the High Court in 2009. In particular, it is asserted that the respondent's predecessor, the Northern Regional Fisheries Board, had sought to prosecute anglers for fishing on the Gweebarra River in July of 2007. Further it is contended that the proceedings might more appropriately have been instituted before the Circuit Court and that NRFB had in effect taken steps “to elevate the matter to the High Court, at great cost, expense and inconvenience to all patties (sic)”.

7 . The appellants find fault with the conduct of the respondent and the respondent's predecessor, contending that it was “appropriate and reasonable” for them to:

“test the...