McDonald v Conroy

• Jurisdiction: Ireland
• Judge: Mr Justice Maurice Collins
• Judgment Date: 30 November 2020
• Neutral Citation: [2020] IECA 336
• Docket Number: Court of Appeal Record Nos 2018/93 & 2018/110
• Court: Court of Appeal (Ireland)
• Date: 30 November 2020

BETWEEN

NIAMH McDONALD

Plaintiff/Respondent

AND

TOMMY CONROY

First Defendant/Appellant

GOREY COMMUNITY SCHOOL

Second Defendant/Appellant

[2020] IECA 336

Kennedy J.

Ní Raifeartaigh J.

Collins J.

Court of Appeal Record Nos 2018/93 & 2018/110

THE COURT OF APPEAL

CIVIL

Costs – Recusal – Stay – Appellants seeking costs – Whether costs should follow the event

Facts: The Court of Appeal (Collins J), on 6 August 2020, allowed the appeals of the first defendant/appellant, Fr Conroy, and the second defendant/appellant, Gorey Community School, set aside the judgment and order of the High Court and directed a rehearing of the proceedings in the High Court. Subsequently, all the parties provided submissions to the Court on the issue of costs. Fr Conroy and the School each sought the costs of their respective appeals. Each said that the costs should follow the event, that they succeeded in their appeals and that the setting aside in full of the judgment and order of the High Court was the relevant “event” for costs purposes. The plaintiff/respondent, Ms McDonald, asked the Court to make no order in respect of the costs of the appeals. She emphasised that the appellants sought the dismissal of her action on appeal and did not achieve such dismissal. Instead a retrial had been directed and her claim remained alive. That, it was said, was “unquestionably the most fundamental “event” in respect of the grounds of appeal”. Ms McDonald argued that all the costs of the first trial should simply be reserved. The appellants submitted that the Court should make orders for costs in their favour in respect of what they submitted were discrete issues which had been finally determined, with the residual costs being reserved to the High Court. Ms McDonald sought a stay on any orders for costs made by the Court pending the retrial. Any such stay was opposed by Fr Conroy.

Held by Collins J that there was no dispute that the costs order made in favour of Ms McDonald against Fr Conroy and the School must be set aside in light of the Court’s decision on the substantive appeal. He held that it was clear that the “orders over” must be set aside also. He held that there could be no argument but that the appellants succeeded in their appeals and that the appellants were presumptively entitled to recover all their costs of the appeals from Ms McDonald. He held that justice required some recognition of the appellants’ failure on the recusal issue. He directed that (i) the costs attributable to the preparation of the appellants’ respective written submissions on the recusal issue should not be recoverable by them from Ms McDonald and (ii) the corresponding costs of Ms McDonald (the costs of preparing its written submissions on the recusal issue) should be payable by the appellants, those costs to be set off by way of deduction against the costs payable by Ms McDonald. He held that the quantification of those costs would be a matter for the Legal Costs Adjudicator. He held that the same approach should be taken in relation to the costs of the vicarious liability issue. He held that the costs of issues that had been finally determined, one way or another, should be decided and that the Court was in a better position than the High Court would be to decide where those costs should lie. He made the following orders in respect of the costs of the High Court hearing: Ms McDonald to recover the costs of the recusal issue; the appellants to recover the costs of dealing with the claims of Ms McDonald in relation to the period after her 18th birthday; the appellants to recover the costs of the school disciplinary issue; and the remaining costs were reserved to the High Court for determination following the retrial.

Collins J held that the balance of justice weighed in favour of the granting of a stay in the circumstances. He therefore stayed all the orders for costs to be made by the Court pending the conclusion of the retrial.

Costs awarded to appellants.

JUDGMENT of Mr Justice Maurice Collins delivered on 30 November 2020

PRELIMINARY

1 For the reasons set out in my judgment of 6 August 2020 (with which Kennedy and Ní Raifeartaigh JJ agreed), this Court allowed the appeals of the First Defendant ( “Fr Conroy”) and the Second Defendant (“ the School”), set aside the Judgment and Order of the High Court and directed a rehearing of these proceedings in the High Court. The history of these proceedings and the matters at issue in them are described in detail in that judgment and this judgment should be read with it.

2 Subsequently, all the parties provided written submissions to the Court on the issue of costs. Having considered those submissions, the Court took the view that a hearing would be of assistance and it has had the benefit of oral submissions from counsel for all the parties. Counsel's written and oral submissions have been very helpful in addressing the costs issue.

THE APPLICABLE COSTS REGIME

3 Sections 168 and 169 of the Legal Services Regulation Act 2015 (“ the 2015 Act”) came into force on 7 October 2019 and a recast Order 99 (which is drafted to be read with those provisions) took effect from 3 December 2019. These appeals were pending at that stage. They were heard in January 2020. It is not clear from the 2015 Act whether (and if so how) the provisions of sections 168 and 169 apply to an appeal initiated before, but heard after, 7 October 2019: Chubb European Group SE v Health Insurance Authority [2020] IECA 183, per Murray J at para 7. As Murray J also noted, an issue may also arise as to the relevance (if any) of those provisions where (as here) an appeal court is asked to make costs orders in relation to a High Court action heard and determined (including as to costs) before 7 October 2019. Again, the 2015 Act is silent on that point.

4 Of course, the practical significance of these issues depends in turn on the extent to which the new regime differs from the one it replaced. In Chubb the application of one regime rather than the other would not, on the facts, have produced a materially different result. However, some possible differences between the two were identified by Murray J at para 20 of Chubb.

5 While it did not appear from the parties' written submissions that anything necessarily turned on this issue here, the Court requested the parties to address the issue when they came to make their oral submissions. Ms Reilly (for Fr Conroy) submitted that the position was as in Chubb, that is to say that there was no material difference between the new and old regimes so far as the costs issues before the Court were concerned. Mr McDonagh (for the School) referred to the language of section 169(1) of the 2015 Act (which frames the basic costs rule in terms of a party “ who is entirely successful in civil proceedings”) and suggested – as Murray J did in Chubb – that this might represent a change but did not suggest that it would make any material difference here. Finally, Mr Fitzgerald (for the Plaintiff, Ms McDonald) again did not suggest that there was any material difference between the two regimes. While he emphasised the terms of section 169(1)(a) – which identifies “ conduct before and during the proceedings” as a factor to which the court can have regard in deciding on costs – he did not suggest that such conduct could not be taken into account in the pre-2015 Act regime.

6 Accordingly, the consensus between the parties was that, for the purposes of addressing the issues of costs here, there was no material difference between the 2015 Act regime and the regime replaced by it.

THE COSTS ORDERS MADE IN THE HIGH COURT

7 The High Court Judge made an order for costs in favour of Ms McDonald against both Fr Conroy (including the costs of his unsuccessful counterclaim against her) and the School. In addition, he made so-called “ orders over” against Fr Conroy and the School in respect of the costs of the Third Defendant (Dennis Brennan, sued as the nominee and agreed representative of the Catholic Church) which had been awarded against Ms McDonald when her claim against that Defendant failed.

8 There was no dispute that the costs order made in favour of Ms McDonald against Fr Conroy and the School must be set aside in light of this Court's decision on the substantive appeal.

9 It is equally clear that the “ orders over” must be set aside also. Fr Conroy and the School both made arguments to the effect that no “ order over” against them was appropriate in any event but I do not think it is necessary or appropriate to engage with those arguments. The simple fact is that the High Court findings of liability having been set aside, the “ orders over” cannot survive, given that the jurisdiction to make such an order is predicated on Ms McDonald having succeeded against one or more defendants: section 78 of the Courts of Justice Act 1936.

THE COSTS OF THE APPEALS

10 Fr Conroy and the School each seek the costs of their respective appeals. Each says that the costs should follow the event and, they say, they succeeded in their appeals and that the setting aside in full of the Judgment and Order of the High Court is the relevant “ event” here for costs purposes.

11 In response, Ms McDonald asks the Court to make no order in respect of the costs of the appeals. She emphasises that the Appellants sought the dismissal of her action on appeal and did not achieve such dismissal. Instead a retrial has been directed and her claim remains alive. That, it is said, is “ unquestionably the most fundamental “event” in respect of the grounds of appeal”.

12 To this, Fr Conroy says that it would be harsh to deprive him of any part of his costs on this basis. His challenge to the High Court Judgment had succeeded in full and many aspects of the claim had been dismissed, such as her claim in relation to alleged events occurring after Ms McDonald's 18 ^th birthday. In similar vein, Mr...