Madden v Louth County Council

• Jurisdiction: Ireland
• Judge: Mr. Justice Allen
• Judgment Date: 21 August 2020
• Neutral Citation: [2020] IEHC 422
• Docket Number: [2020 No. 3649 P.]
• Court: High Court
• Date: 21 August 2020

BETWEEN

JOHN MADDEN

PLAINTIFF

AND

LOUTH COUNTY COUNCIL

DEFENDANT

[2020] IEHC 422

Allen J.

[2020 No. 3649 P.]

THE HIGH COURT

Interlocutory injunction – Costs – Stay on execution – Defendant seeking costs – Whether execution on foot of any costs order should be stayed pending the final determination of the action

Facts: The High Court (Allen J), on 30th June, 2020, for the reasons given in a written judgment, [2020] IEHC 319, decided to refuse an application on behalf of the plaintiff, Mr Madden, for an interlocutory injunction restraining the defendant, Louth County Council, from making a promotion from a panel on which the plaintiff had not been included. The defendant asked for an order that the plaintiff should pay the costs of the motion. The plaintiff argued that the costs should be reserved to the trial judge, alternatively that they should be made costs in the cause. In the further alternative, the plaintiff urged that execution on foot of any costs order should be stayed pending the final determination of the action.

Held by Allen J that he found nothing in the particular nature or circumstances of the case which would justify a departure from the general rule that the successful defendant was entitled to an award of costs against the unsuccessful plaintiff. Having regard to the plaintiff’s declared intention in the course of the hearing as to the prosecution of the action if the motion were to fail, Allen J agreed that the plaintiff may hope to secure some tactical advantage by having execution of the order for costs stayed, but he did not see what that tactical advantage might be. He thought that the stay application was probably of little practical consequence. He found that if execution on foot of the costs order was stayed, and the plaintiff did not move the action on, the defendant had its remedy under the rules; and if the costs order was not stayed, the plaintiff, with moderate effort, could probably get the action on before the bill was drawn and adjudicated. Allen J thought that the balance of justice was in favour of a stay.

Allen J held that there would be an order for payment by the plaintiff of the defendant’s costs of the motion with a stay on execution pending the final disposal of the action.

Costs awarded to defendant. Stay on execution granted.

JUDGMENT of Mr. Justice Allen delivered on the 21st day of August, 2020

1 On 30th June, 2020 for the reasons given in a written judgment, [2020] IEHC 319, I decided that I must refuse an application on behalf of the plaintiff for an interlocutory injunction restraining the defendant from making a promotion from a panel on which the plaintiff had not been included.

2 The defendant now asks for an order that the plaintiff should pay the costs of the motion. The plaintiff argues that the costs should be reserved to the trial judge, alternatively that they should be made costs in the cause. In the further alternative, as a last stand, as it were, the plaintiff urges that execution on foot of any costs order should be stayed pending the final determination of the action.

3 My judgment on the substantive application was delivered electronically and in accordance with the practice direction the parties made their arguments in relation to costs in writing.

4 Unusually, the plaintiff's arguments were made by letter addressed to the defendant's solicitors rather than in the form of a submission to the court. That letter deals in the main with the applicable legal principles but goes on to appeal to the defendant, as the plaintiff's employer, to take into account the impact an order for costs against him would have on what it said to be the plaintiff's modest enough level of earnings, which is known to the defendant. While there is no evidence of the plaintiff's earnings I accept that the financial burden on a fire-fighter of an order for the costs of a two day High Court injunction application would be very heavy. I understand the reference to the plaintiff's means to be an ad misericordiam appeal to the defendant rather than a submission to the court, but in case I am wrong in that, the means of the parties are not matters that can properly be taken into account in the exercise of my judicial discretion as to where the costs should lie.

5 The plaintiff's solicitors' letter sets out a long quotation from the judgment of Laffoy J. in O'Dea v. Dublin City Council [2011] IEHC 100 and refers to the judgments of McDonald J. in Paddy Burke (Builders) Limited v. Tullyvarraga Management Company Limited [2020] IEHC 199 and of Haughton J. in McFadden v. Muckno Hotels Limited [2020] IECA 110. Without saying why, it is submitted that “at this juncture it is not possible for the court to ‘justly’ adjudicate on the issue of costs.” It is also submitted - or perhaps it is a complaint against the defendant - that the refusal of the defendant to give an undertaking not to make promotions from the panel left the plaintiff with no option but to make the application. It is said that the plaintiff was unaware of the defendant's intention to establish a new panel in 2020 until the affidavits in response to his motion were filed.

6 The submission on behalf of the defendant was more focussed, pointing to the findings in my judgment that I was not satisfied that the plaintiff had made out a fair issue to be tried, still less a strong case, that the notice party's decision was invalidated by the fact that he spoke to Mr. O'Connor; or that the plaintiff had established a sufficient link between the interlocutory order and the substantive relief claimed in the action; and to the assertion by counsel for the plaintiff, which was noted in the judgment, that if the interlocutory order was not made the action was unlikely ever to come to trial.

7 The defendant's submission sets out the new framework in s. 169 of the Legal Services...