Jackson way Properties Ltd v Smith and Others
| Jurisdiction | Ireland |
| Judge | Ms. Justice Whelan |
| Judgment Date | 05 October 2023 |
| Neutral Citation | [2023] IECA 234 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Appeal Number: 2018/188 |
and
[2023] IECA 234
Collins J.
Whelan J.
Noonan J.
Appeal Number: 2018/188
THE COURT OF APPEAL
Civil
Practice & procedure – Costs – Substantive litigation concluded – Costs hearing – Legal Services Regulation Act, 2015
Facts: The substantive judgment of this Court regarding property and restrictive covenants was delivered on 21st July 2023 (see [2023] IECA 185.) This Court reversed the decision of the High Court, and provisionally indicated that the appellants were entitled to their costs of the appeal and at first instance. The parties now made submissions on the costs order to be made with regards to the Legal Services Regulation Act 2015.
Held by the Court that the appellants would be awarded their costs in full. The appellants prevailed on appeal and were substantially successful in overturning the decision and orders of the High Court and secured significant orders on their counterclaim. There was no justification for deviating from this approach.
JUDGMENT of Ms. Justice Whelan delivered on the 5th day of October 2023
. The substantive judgment of this Court [2023] IECA 185 was delivered on the 21 st July 2023. This Court having reversed the decision of the High Court, at para. 205 of the judgment, provisionally indicated that the appellants were entitled to their costs of the appeal and in the High Court.
. The key conclusions in the High Court included the following:-
All of those determinations were reversed on appeal.
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(a) That the burden of the restrictive covenant contained in a deed of transfer of 1947 was not annexed to the transferor's land.
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(b) That the lands of the transferee to the 1947 deed of transfer, part of which subsequently vested in the plaintiff, were not bound by or otherwise subject to the said covenant.
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(c) That the defendants were not entitled to enforce the restrictive covenant against the lands now vested in Jackson Way, which form part of the lands transferred by the deed of transfer of 1947.
. The respondent acknowledges that the appellants have been “largely successful” in their appeal. It is contended that they have not been entirely successful, having raised a number of issues in which they were unsuccessful in this Court or in the High Court. It is contended that the order for costs should take account of issues which were resolved in Jackson Way's favour. The respondent in its submissions places reliance on the relevant provisions of sections 168 and 169 of the Legal Services Regulation Act, 2015 (the 2015 Act), it being emphasised that pursuant to s. 168(2) of the 2015 Act a costs order may direct a party to pay a portion of another party's costs (s. 168(2)(a)), or costs from or until a specified date, or costs relating to one or more steps in proceedings (s. 168(2)(c)).
. The respondent places emphasis on s. 169 of the 2015 Act insofar it provides that, in general, costs are recoverable by a party who is “entirely successful” in civil proceedings, from a party who is not successful. Emphasis is placed on s. 169(1) of the Act which provides that a court may order otherwise “… having regard to the particular nature and circumstances of the case, and the conduct of the proceedings by the parties”. Reliance is placed on the comprehensive summary of the costs regime as set out by Murray J. in his judgment in this Court in Chubb European Group SE v Health Insurance Authority [2020] IECA 183 and in particular para. 19 of the said judgment. The judgment of Murray J. offers a comprehensive vade mecum encompassing the fundamental principles to be derived from the relevant statutory provisions of the 2015 Act and, where relevant, aligning same with the cognate provisions of the recast Order 99 of the Rules of the Superior Courts. To the extent relevant to the key elements in this application that judgment will be considered in greater detail hereafter.
. The respondent contends that “an overly meticulous approach” to the proper allocation of costs is not required and that the court need not (and perhaps should not) engage in a granular analysis of every argument made during the course of the hearing but contends “it must nevertheless consider the statutory criteria, analyse how the issues before the court were resolved, decide whether any unmeritorious argument was advanced and whether this added to the costs associated with the hearing as a whole”, relying on Connelly v An Bord Pleanála [2018] IESC 36.
. The respondent contends that the appellants have been largely (but not entirely) successful but that “… they are not entitled to recover their costs in respect of those issues on which Jackson Way prevailed. Moreover, Jackson Way is entitled to recover a proportion of the costs it incurred, to be set off against the costs recoverable by the defendants”. The respondent contends that it succeeded in a number of material respects notwithstanding that all the key orders made in the High Court were reversed/set aside.
. The appellants had pleaded at para. 20(f) and (g) of their defence, by way of an alternative argument, that the covenant specified in the 1947 deed had been annexed to their lands by virtue of the operation of either or both statutory provisions under the 1881 Act. The judgment of the High Court considered the arguments and the respondent notes that:
“The learned trial judge's detailed analysis of this issue is contained in paragraphs 81 to 99 of his judgment and accounts for approximately 20% thereof.”
The appellants appealed against that finding of the High Court judge by Ground of Appeal number 15 in the notice of appeal, contending that the High Court judge had fallen into error in his analysis of the two sections. The respondent emphasises that in the appellants' written submissions the arguments around this ground of appeal were developed at para. 65–75 (inclusive) in this Court. While the arguments did not meet with favour in this Court, they did however succeed in overturning the High Court decision and obtained key orders sought in their counterclaim on different grounds. The issue of the contended for statutory annexation is dealt with at paras. 143–158 of this Court's judgment. The respondent places emphasis on para. 148 of that judgment where I expressed the view that the jurisprudence of the courts of England and Wales did not offer support for this ground of appeal. Reliance was also placed on paras. 154 and 158 of the judgment, including the conclusion that no authority was established for the construction of s. 6 of the Conveyancing Act, 1881 as had been suggested by the appellants.
. Separately it had been contended by the appellants in their defence (para. 12) that Jackson Way had acknowledged “the efficacy of the covenant by obtaining releases from adjoining landowners”. This point had been rejected in the High Court (para. 76 of High Court judgment). The appellants appealed that determination unsuccessfully.
. Finally, emphasis was placed on the fact that before the High Court the appellants had contended that Jackson Way had been guilty of “… an inexcusable delay amounting to laches” such as should disentitle the plaintiff/respondent to the relief it sought. That argument had been rejected by the trial judge “for the reasons set out at para. 101 of his judgment. The defendants did not cavil with the learned trial judge's analysis of this issue on appeal.” The point was not pursued on appeal.
. Jackson Way contends in the alternative that even if the appellants should be regarded as having been entirely successful in this appeal, “it would still be appropriate to have regard to the success of Jackson Way on these issues with s. 169(1)(b) expressly providing that a court can have regard to ‘whether it was reasonable for a party to raise, pursue or contest one or more issues in the proceedings’”.
. Jackson Way contends that since it “succeeded” in opposing the statutory annexation issue in the High Court and on appeal and “succeeded” on the other issues identified above in the High Court, the costs order made by this Court should reflect this success. As a consequence, it is contended that in light of the decision in Veolia Water UK Plc v Fingal County Council (No. 2) [2007] 2 IR 81, “not only should costs not be awarded in favour of the defendants on those issues, there should be a set off in respect of the costs of Jackson Way in respect of these issues.” It is contended that “the relative degree of success of the parties would be that this Court would make an order that the defendants recover 80% of their costs of the appeal and 75% of their costs in the High Court.” (Para. 15 of submission).
. The appellants' position is simply put: They contend that they have been wholly successful in this appeal and that the order of the High Court made on the 19 th March 2018 has been overturned in its entirety. The appellants' counterclaim was granted in full. The argument of the respondent is characterised as in effect canvassing “the proposition that because some of the arguments before this Court were not successful that it should be awarded some of its costs against the Appellant.”
. The appellants contest the respondent's characterisation of the effect of the judgment of this Court and contend that there were but two net issues in the case:
It was argued that the latter was the primary focus of the debate. In support of a contention that the appellants were “ entirely successful”, it is contended that they had advanced several alternative bases upon which...
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