Jean Connors v Daniel Kinsella

• Jurisdiction: Ireland
• Judge: Mr. Justice Mark Sanfey
• Judgment Date: 15 December 2021
• Neutral Citation: [2021] IEHC 791
• Docket Number: [Record No. 2014/10908 P]
• Year: 2021
• Court: High Court

Between

Jean Connors

Plaintiff

and

Daniel Kinsella

First Named Defendant

and

David Tarrant (Practising Under the Style and Title of Tarrant and Tarrant Solicitors)

Second Named Defendant

and

Andrew Tarrant (Practising Under the Style and Title of Tarrant and Tarrant Solicitors)

Third Named Defendant

[2021] IEHC 791

[Record No. 2014/10908 P]

THE HIGH COURT

JUDGMENT of Mr. Justice Mark Sanfey delivered on the 15th day of December, 2021

1 On 8th November, 2021, I delivered a judgment in relation to an application by the plaintiff for an interlocutory injunction against the first named defendant in respect of certain works carried out by him at a property known as 10 Casement Park, Bray, Co. Wicklow (“the property”). That judgment (‘the substantive judgment’) is reported at [2021] IEHC 696, and should be read in conjunction with the present judgment which concerns the costs of the application and the terms of the order to be made.

2 At the conclusion of the substantive judgment, I invited “brief written submissions” in this regard. The submissions I received were most certainly not “brief”, but in fairness did address issues which were of some complexity, and which perhaps required to be addressed at more length than originally anticipated.

3 In the substantive application, I refused the relief sought. The first named defendant accordingly argues that it is appropriate for the court to determine the issue of costs “…because this injunction application was a discrete, stand-alone application, the merits of which are not impacted whatsoever by the ultimate result of the substantive proceedings” [Written submissions, para. 3.3]. The plaintiff, on the other hand, “…urges this Honourable Court to reserve the costs of the interlocutory injunction application or in the alternative to make them costs in the cause”. The plaintiff also submits that “…the Court should reject the First Named Defendant's application to have costs [awarded] against her personally” [Written submissions, para. 3].

4 There are other issues between the parties. If an order for costs is to be made in favour of the first named defendant, an issue arises as to whether such an order can or should be made against the plaintiff personally. The first named defendant also seeks an inquiry as to damages, given that the court has decided that the interim order made against him on 4th October, 2019 should be discharged, and leave to deliver an amended defence.

Where the burden of costs should fall

5 There is no dispute between the parties as to the regime which governs the award of costs in relation to the application. The appropriate legal principles are to be found in O.99 of the Rules of the Superior Courts, and s.169 of the Legal Services Regulation Act 2015 (“the 2015 Act”). In summary, O.99, r.2(3) requires the court to make an order in respect of the costs of any interlocutory application “save where it is not possible justly to adjudicate upon liability for costs on the basis of the interlocutory application”. Order 99, r.3(1) requires the court, in considering whether to award costs in respect of any “step in any proceedings” to have regard to the matters set out in s.169(1) of the 2015 Act. That subsection gives statutory effect to the principle that costs should follow the event unless the court orders otherwise, and contains a list of the type of matters to which a court should have regard when considering whether or not the default position of costs following the event should apply.

6 The plaintiff maintains that a key issue between the parties was whether or not a fair issue to be tried – or in the case of the mandatory reliefs sought, a strong case likely to succeed at trial – had been made out in relation to “the underlying claim of duress/undue influence” [written submissions para. 12] in the proceedings generally. As the plaintiff put it at para. 15 of her written submissions:

“The issue of duress/undue influence is a material factual dispute which has had a key bearing on the outcome of the interlocutory injunction. It will – it has to be – revisited at the plenary hearing. As such, it is submitted that for that reason alone, it is not possible justly to adjudicate upon liability for costs at this juncture.”

7 The plaintiff also submitted that the attitude of the non-party siblings of the plaintiff and first named defendant was “relevant to an important aspect of the balance of convenience…”, and this attitude would “evidently be revisited at the hearing of the action”. [Paragraph 20 written submissions]. In these circumstances, it was suggested that it would not be appropriate for the court at this stage to award costs if part of the factual basis for the court's findings would ultimately be considered by the trial judge.

8 It was also submitted that the “overall justice of the case” should take into account that the plaintiff acts as administrator for the benefit of the estate of the late Frances Kinsella and that she successfully applied to O'Hanlon J for interim orders, the costs of which application were reserved. The plaintiff relies on the criterion set out at s.169(1)(b) of the Act, and maintains that it was reasonable for her to “raise, pursue or contest” the application, particularly as the court was satisfied, notwithstanding a submission to the contrary from the first named defendant, that the plaintiff had established a fair case to be tried in light of the decision of Simons J to refuse the first named defendant's application to strike out the proceedings as frivolous and vexatious and/or as an abuse of process. The plaintiff submits that it was not “reasonable” for the first named defendant to contest this point in revised submissions and at the hearing.

9 The first named defendant contends that, where the interlocutory application concerns an issue which has no relevance to the issues to be tried at the hearing of the action, the court can and should deal with the costs in accordance with O.99, r.2(3). It is submitted that the decision of Barrett J. in Glaxo Group Limited v. Rowex Limited [2015] 1 IR 185 at 210, in which the court summarised the relevant factors as set out in the case law in relation to the costs of interlocutory injunctions, was instructive in this regard:

“(x) The prospect of a court being in a position to make an award of costs in relation to an application for interlocutory injunctive relief is less likely than in the case of other forms of interlocutory applications (Haughey, O'Dea, Tekenable, Hanrahan).

(xi) A distinction falls to be drawn between (a) cases where the decision on an interlocutory injunction application turns on issues in respect of which a different picture may emerge at trial and (b) cases where the application turns on matters such as adequacy of damages or balance of convenience which will not be addressed again at the trial. In the former category of cases, a risk of injustice may arise in determining costs at the stage of the interlocutory injunction application; in the latter the same risk may not arise. (Haughey, Diamond, Hanrahan).

(xii) Factors making an application for an interlocutory injunction less susceptible to a determination as to liability for costs include (a) that there may be matters which can only be resolved by the court of trial on oral evidence at plenary hearing of the action, and (b) matters may come to light by way of discovery or new evidence not available to the parties at the time of the interlocutory application which would bring about a result which seemed unlikely or improbable at the time that application was heard. (O'Dea, Dubcap).”

10 The first named defendant contends that the present matter is such as was contemplated by Barrett J at para. (xi)(b) above, i.e. an application where the issues of balance of convenience and adequacy of damages were crucial to the court's determination, and are such as will not be addressed again at the trial; the interlocutory application “did not turn on the merits of the Plaintiff's underlying case… [para. 3.10(ii) written submissions]”. It was submitted that, in these circumstances, it would be appropriate for this Court to determine the issue of costs for the present application, and there was no reason to depart from the normal rule that costs should follow the event.

Personal liability of administrator

11 Without prejudice to her position that the costs should be reserved or made costs in the cause, the plaintiff “disputes in the strongest possible terms” the contention by the first named defendant that a costs order be made against her personally, as opposed to in her capacity as administrator of the estate of Frances Kinsella.

12 The plaintiff refers to the consideration of the case law by this court in Crowley v. Murphy [2021] IEHC 645, and submits that the court should follow the dicta expressed by the Supreme Court in Bonis Morelli: Vella v. Morelli [1968] IR 11, in which Budd J expressed the view that in circumstances “where the case is a proper one for investigation and the litigation was conducted bona fide, there arises a situation in which some sort of special order concerning costs may properly be made…”.

13 The plaintiff submits that in circumstances where she alleges the transfer of the deceased's property to the first named defendant should be set aside, that as the circumstances surrounding the transfer of property the subject of the within proceedings is in issue, she should not be deterred from having the transfer investigated by the court in her capacity as Administrator of the deceased's estate. The plaintiff further relies upon Muckian v Hoey [2017] IEHC 47, in which Keane J. expanded upon the principles set down in Morelli noting:

“…Administrators, executors or trustees should not be unduly deterred from seeking to have genuine problems or issues in the administration of any estate or trust...