John Ward v an Post
| Jurisdiction | Ireland |
| Judge | Mr. Justice Heslin |
| Judgment Date | 07 July 2021 |
| Neutral Citation | [2021] IEHC 471 |
| Docket Number | [RECORD NO. 2017/812P] |
| Year | 2021 |
| Court | High Court |
[2021] IEHC 471
[RECORD NO. 2017/812P]
THE HIGH COURT
RULING of Mr. Justice Heslin delivered on the 7 th day of July, 2021 .
. This short ruling in relation to the issue of costs must be read in conjunction with the very lengthy judgement delivered by this court on 11 June 2021.
. For the reasons set out in that judgment, the plaintiff's claim was dismissed in its entirety. The plaintiff was wholly unsuccessful and it can fairly be said that the defendant prevailed entirely in the defence of the claim which was commenced by way of a Personal Injuries Summons dated 08 September 2017. The issue of costs is dealt with in the Legal Services Regulation Act of 2015 (the “2015 Act”) and in Order 99 of the Rules of the Superior Courts and I have had regard to both.
. Written submissions, as regards costs, were furnished by both sides and I have carefully considered these. On behalf of the plaintiff it is submitted that this court should make no order as to costs.
. The plaintiff's submissions refer inter alia to the manner in which the proceedings progressed and the securing by the plaintiff of injunctive relief, which remained in place for in excess of two years prior to the trial. Given the failure of the plaintiff's claim on all counts, the fact that interlocutory orders were secured prior to the trial offers no support for the plaintiff's submission with regard to how costs should now be dealt with.
. The plaintiff also submits that the defendant's conduct during the course of the proceedings increased the length of the litigation generally, as well as that of the trial. At this juncture it is appropriate to observe that there is nothing which would entitle me to take such a view.
. On behalf of the plaintiff, particular emphasis is laid on this court's discretion in respect of costs and reference is made inter alia to the judgement of Mr Justice Murray in Chubb European Group SE v. The Health Insurance Authority [2020] IECA 183, wherein, at para. 19, the learned judge stated that the “general discretion of the court in connection with the ordering of costs is preserved (s.168(1)(a) and O.99, r.2(1)”.
. It is submitted that a successful party will not ipso facto be awarded the entirety of its costs, reliance being placed on the judgement of Twomey J. in Byrne v. Revenue Commissioners [2021] IEHC 415 in that regard. The submission is also made that the defendant failed to engage in mediation with the plaintiff and that this should also be taken into account, pursuant to section 169 of the 2015 Act.
. On behalf of the plaintiff, reliance is also placed on the decision of Mr Justice Simon's in Re Independent News and media plc [2021] IEHC 232, wherein the learned judge observed that on occasion it will be necessary to depart from the default position that a successful party is entitled to their costs, where the “ constitutional right of access to the courts will, in some instances, be better served by making a different form of course the order.” In that case, the court cited the example of where the successful party had prolonged the proceedings unnecessarily by unreasonably pursuing or contesting certain issues. It is appropriate to stress, however, that no such consideration arises in the present case.
. The submission is also made that the majority of employment-related litigation is captured by a no-costs regime, that the defendant had a significant litigation advantage and that to award costs in favour of the defendant has the potential to have what is described in the plaintiff's submissions as “ a serious chilling effect on other litigants who find themselves unable to avail of the statutory regime.”
. The “ Conclusion” section in the plaintiff's submissions regarding costs summarises, as follows, the reasons why this court is urged to make no order for costs or, in the alternative, to award the defendant only a portion of its costs:
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(i) The defendant refused to engage in mediation.
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(ii) Even when the plaintiff secured an injunction restraining the process the subject of these proceedings the plaintiff chose to pursue a rigid defence strategy notwithstanding the many requests by the plaintiff to engage in either mediation or operate an amended version of the ASMP that would take account of and facilitate his condition.
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(iii) he matter is an employment law one where traditionally each party bears its own costs.”
. With regard to the foregoing submissions, the fact that the plaintiff is employed by the defendant does not make the proceedings an “employment law” claim. These proceedings were personal injuries proceedings commenced by means of a Personal Injuries Summons. Bullying and harassment were said to have caused the plaintiff to suffer injury and the defendant was also said to have breached obligations to the plaintiff, including under statute, contract and at common law, resulting in injury and loss to the plaintiff, including as regards the operation by the defendant of the relevant Attendance Support & Management Process (i.e. “ASMP” policy). All such claims were dismissed, having regard to the facts which emerged from an analysis of the evidence and the outcome of the case turned on same, having regard to well-established legal principles.
. The plaintiff was entirely unsuccessful in substantiating any claim. In circumstances where the defendant had no liability whatsoever to the plaintiff, the defendant cannot fairly be criticised for refusing to engage in mediation. It is clear, however, that on numerous occasions the defendant made its position as regards costs very clear and the defendant draws attention, in its submissions, to the contents of certain correspondence (copies of which accompanied the submissions) as follows.
. In a letter dated 7 September 2017 which was sent to the plaintiff's solicitors, the defendant stated inter alia: “ …we fail to see the necessity or urgency for a High Court application which will once again expose both your client and An Post to burdensome and unnecessary costs”.
. In a letter sent by the defendant to the plaintiff's solicitors on 11 October 2017, the defendant stated inter alia:
“There is no reason for unnecessary costs to be incurred but we regret to note that thus far, despite repeated averments to the contrary, your client insists that the ASMP process is something that it is not.
This letter will be relied upon together with previous correspondence and the Affidavits already sworn by our client in respect of the question of costs of the said interlocutory application.”
. In a letter dated 2 April 2019 to the plaintiff's solicitors, the defendant made an “open offer” proposal in the following terms:
“ In one final effort to attempt to find a resolution our client is willing to consider the following:-
1. That upon the withdrawal of the proceedings claiming damages for personal injuries, each party agreeing to bear their own costs to date, our client will engage the services of a facilitator to...
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