O'Mahony v Start Mortgages Designated Activity Company; O'Mahony v Start Mortgages Designated Activity Company; Start Mortgages Designated Activity Company v O'Mahony
| Jurisdiction | Ireland |
| Judge | Mr. Justice Mark Heslin |
| Judgment Date | 24 November 2022 |
| Neutral Citation | [2022] IEHC 647 |
| Court | High Court |
| Docket Number | Record Number: 2018/484 CA Record Number: 2020/10 CA |
[2022] IEHC 647
Record Number: 2018/484 CA
Record Number: 2018/510 CA
Record Number: 2020/10 CA
THE HIGH COURT
Possession of property – Costs – Special circumstances – Start Mortgages DAC seeking costs – Whether costs should follow the event
Facts: The plaintiff, Start Mortgages DAC (Start), for the reasons set out in a High Court judgment delivered on 4th November 2022 ([2022] IEHC 629), was entirely successful and the defendant, Ms O’Mahony, was entirely unsuccessful in what were seven separate applications, all of which related to Start’s application for possession of certain property owned by the defendant, the subject of a mortgage and charge of which Start was the registered owner. On the issue of costs, Start contended that there were no special circumstances which would justify a departure from the ‘normal’ rule as to costs (i.e. that ‘costs follow the event’). Start submitted that there was nothing to displace the presumption that they were entitled to their costs and no valid basis for the court exercising its discretion to depart from the ‘normal’ rule. In opposition to a costs order, the defendant referred to a wide range of issues which appeared in a range of documents which she submitted in the wake of the judgment, including: (a) a document entitled “Notice of Error/Coram Nobis No.2”, dated 17th November which was addressed to the court (and copied to the Chief Justice and to the Attorney General); (b) a document entitled “Statutory Notice to file your Defence to the filed Defence & Counter Claim 8th October 2018”, dated 9th November 2022 addressed to Start (and copied to Cork Circuit Court office); and (c) a document entitled “Statutory Notice to file your Defence to the filed Defence & Counter Claim 12th June 2013”, dated 16th November 2022 addressed to Start (and copied to Cork Circuit Court office).
Held by Heslin J that despite the range of ‘bare’ assertions made by the defendant, there was no basis, grounded in evidence, for any adverse findings with respect to Start’s conduct. He found himself entirely unable to identify any reasoned basis, rooted in the facts, which might justify a departure from the ‘normal’ rule. Whereas s. 169 (2) of the Legal Services Regulation Act 2015 requires reasons to be given for a departure from the normal rule, it was not possible, in his view, to identify any such reasons. He was not satisfied that there were any special or countervailing circumstances which would disentitle the entirely successful party from receiving their costs. Although sub-paragraphs (a) to (g) of s. 169 of the 2015 Act comprises what might be called a ‘non-exhaustive’ list, a consideration of all the facts and circumstances of the case, in light of those statutory provisions, fortified him in the view that it would be a clear injustice not to award the entirely successful party their costs in the case.
Heslin J held that Start was entitled to an order for costs to include all reserved costs, to be taxed or adjudicated in default of agreement, and was invited to submit a draft final order to reflect the court’s findings.
Costs awarded to Start Mortgages DAC.
COSTS RULING of Mr. Justice Mark Heslin delivered on the 24 th day of November 2022
. This ruling on the question of costs should be read in conjunction with the judgment delivered in this matter on 4 th November 2022 (neutral citation [2022] IEHC 629) (“the judgment”), para. 126 of which stated, inter alia, the following:
“The evidence before the court in the present case puts beyond doubt that Start DAC is the owner of the relevant charge; that the right to seek possession arose; and is exercisable on the facts. There is simply no issue disclosed by the evidence which would render a plenary hearing necessary. The attempts to oppose the possession claim fall very well short of anything which could conceivably constitute a stateable grounds of defence. The relevant proofs have been made out comprehensively and in a manner which rules out any legal or factual basis upon which the possession claim could be dismissed, even if the matter went to go to a plenary hearing (something which the interests of justice plainly do not require). Nor is there any conceivable basis for a valid challenge to the substitution application. By virtue of being the sole registered-owner of the relevant charge, Start DAC is the one and only appropriate plaintiff.”
. For the reasons set out in the judgment Start Mortgages Designated Activity Company (“Start”) was entirely successful and Ms. O'Mahony (“the defendant”) was entirely unsuccessful (in what were 7 separate applications, all of which related to Start's application for possession of certain property owned by the defendant, the subject of a mortgage and charge of which Start is the registered owner). The significance of the foregoing is clear when one looks at Section 169(1) of the Legal Services Regulation Act of 2015 Act (“the 2015 Act”), which states:
“A party who is entirely successful in civil proceedings is entitled to an award of costs against a party who is not successful in those proceedings, unless the court orders otherwise, having regard to the particular nature and circumstances of the case, and the conduct of the proceedings by the parties, including–
(a) conduct before and during the proceedings,
(b) whether it was reasonable for a party to raise, pursue or contest one or more issues in the proceedings,
(c) the manner in which the parties conducted all or any part of their cases
(d) whether a successful party exaggerated his or her claim
(e) whether a party made a payment into court and the date of that payment
(f) whether a party made an offer to settle the matter the subject of the proceedings, and if so, the date, terms and circumstances of that offer, and
(g) where the parties were invited by the court to settle the claim (whether by mediation or otherwise) and the court considers that one or more than one of the parties was or were unreasonable in refusing to engage in the settlement discussions or in mediation.” (Emphasis added).
. As the judgment makes clear, all issues were decided in favour of Start, which is the “ entirely successful” party for the purposes of section 169 (1) of the 2015 Act. As the entirely successful party, Start enjoys a presumptive right ( per s. 169(1) of the 2015 Act) to an award of costs against the defendant.
. In Pembroke Equity Partners Ltd v Corrigan & Galligan, [2022] IECA 142 Collins J for the Court of Appeal, stated:
“Section 169(1) embodies the general principle that costs follow the event (expressed in terms of a party who is entirely successful being entitled to an award of costs unless the Court orders otherwise). That, according to the Supreme Court in Godsil v Ireland [2015] IESC 103, [2015] 4 IR 535 is the “overriding start point on any question of contested costs.” While Godsil was a pre-2015 Act case, in my view that same principle animates its provisions and those of Order 99 (recast)”.
. I will presently refer to both Godsil and to Order 99 of the Rules of the Superior Courts (“RSC”) but at this juncture, and for the benefit of the defendant, it is appropriate to refer to what is often called the “normal rule” in relation to costs, which, in the manner explained by the learned judge in Pembroke Equity Partners Ltd, has its statutory reflection in Section 169(1) of the 2015 Act.
. As the Supreme Court made clear in Grimes v Punchestown Developments Co. Ltd [2002] 4 I.R. 515, the “ normal rule” is that “ costs follow the event” (i.e. that the successful party is entitled to their costs as against the unsuccessful party). It is also settled law that the burden rests on the party seeking to resist a costs order to show that the costs should not follow the normal rule. For the defendant's benefit, the ‘event’, for the purposes of costs, was Start's success in all 7 applications, in which the defendant was entirely unsuccessful.
. Order 99 Rules 2 and 3 of the Rules of the RSC provide:
“2. Subject to the provisions of statute (including sections 168 and 169 of the 2015 Act) and except as otherwise provided by these Rules:
(1) The costs of and incidental to every proceeding in the Superior Courts shall be in the discretion of those Courts respectively.
(2) No party shall be entitled to recover any costs of or incidental to any proceeding from any other party to such proceeding except under an order or as provided by these Rules.
(3) The High Court, the Court of Appeal or the Supreme Court, upon determining any interlocutory application, shall make an award of costs save where it is not possible justly to adjudicate upon liability for costs on the basis of the interlocutory application.
(4) An award of costs shall include any sum payable by the party in favour of whom such an award is made by way of value added tax on such costs, where and only where such party establishes that such sum is not otherwise recoverable.
(5) An order may require the payment of an amount in respect of costs forthwith, notwithstanding that the proceedings have not been concluded.
3. (1) The High Court, in considering the awarding of the costs of any action or step in any proceedings, and the Supreme...
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