Kevin Tracey and Karen Tracey v Michael McDowell, The Minister for Justice Equality & Law Reform, Ireland, The Attorney General, The Commissioner of an Garda Síochána, the DPP, The Chief Executive of The Courts Service, Bernard Neary, Edward Finucane, John Keenan, Patrick Flynn, John Costello, Dermot O'Connell and David O'Brien

JurisdictionIreland
JudgeMr. Justice Clarke
Judgment Date25 June 2021
Neutral Citation[2021] IESC 38
Docket Number[Appeal No: 154/2011]
CourtSupreme Court
Between/
Kevin Tracey and Karen Tracey
Plaintiffs/Appellants
and
Michael McDowell, The Minister for Justice Equality & Law Reform, Ireland, The Attorney General, The Commissioner of An Garda Síochána, the Director of Public Prosecutions, The Chief Executive of The Courts Service, Bernard Neary, Edward Finucane, John Keenan, Patrick Flynn, John Costello, Dermot O'Connell and David O'Brien
Defendants/Respondents

2021 IESC 38

Clarke C.J.

MacMenamin J.

Charleton J.

[Appeal No: 154/2011]

THE SUPREME COURT

Costs – Dismissal – Proportionality – Appellants seeking costs – Whether costs should follow the event

Facts: The Supreme Court, for the reasons set out in a judgment ([2016] IESC 44), allowed the appeal of the plaintiffs/appellants, Mr and Ms Tracey, against a decision of the High Court striking out a number of proceedings. The first to fifth defendants/respondents (the State Respondents) agreed that costs should follow the event but suggested that, relying on Dawson v Irish Brokers Association [2002] IESC 36, the only amount that could properly be recovered by the appellants were sums reflecting expenses and outlay. The appellants contended that they should be entitled to some form of payment in respect of the time which they had devoted to the proceedings. Counsel for the sixth defendant/respondent, the Courts Service, adopted a similar position to that of the State Respondents as a fall back, but contended that there should be no order of costs in respect of the Courts Service.

Held by the Court that it was unnecessary to deal with the separate question of the liability or otherwise of the Courts Service in respect of costs, for it was agreed on behalf of the State Respondents that the appellants were entitled to an order against them in whatever manner the Court determined to be appropriate and there was no issue as and between the State Respondents and the Courts Service in respect of costs. In circumstances where it was clear, therefore, that any amount to which the appellants were deemed to be entitled would in fact be paid by the State Respondents, there was no practical benefit to them having a second order for the same costs as against the Courts Service. The Court did not feel that it was appropriate to depart from the established case law as found in Dawson. The Court held that the appellants were only entitled to expenses and outlay, which, from the schedule which they supplied to the respondents, came to the sum of €1,242. In that context, the Court noted that counsel for the Courts Service suggested a lesser sum but, given that the order was being made as against the State Respondents who agreed that the larger sum was the appropriate amount, the Court held that it was unnecessary to address the...

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