Minister for Communications, Energy & Natural Resources v Wymes

• Jurisdiction: Ireland
• Judge: Ms Justice Faherty
• Judgment Date: 06 October 2020
• Neutral Citation: [2020] IECA 274
• Docket Number: Appeal Number: 2019/247
• Court: Court of Appeal (Ireland)
• Date: 06 October 2020

BETWEEN/

THE MINISTER FOR COMMUNICATIONS, ENERGY AND NATURAL RESOURCES

AND

MICHAEL O'CONNELL

PETITIONERS/RESPONDENTS

-AND-

MICHAEL WYMES

RESPONDENT/APPELLANT

[2020] IECA 274

Kennedy J.

Faherty J.

Ní Raifeartaigh J.

Appeal Number: 2019/247

THE COURT OF APPEAL

Costs – Stay – Extraordinary circumstances – Respondents seeking costs – Whether there should be no costs award in favour of the respondents having regard to the unique and extraordinary circumstances

Facts: Judgment was delivered by the Court of Appeal on 7 July 2020 (the principal judgment). The appeal was dismissed on all grounds. Faherty J indicated a provisional view that costs should be awarded to the successful party in the appeal and that the Court would so order fourteen days from the date of judgment unless either party applied within that time to request that the Court should otherwise order. If applying, the appellant, Mr Wymes, was to first notify the office in writing of his intention to object to the indicative costs proposal within the fourteen-day period and should file short written submissions within one week of his so notifying the Court. The respondents, the Minister for Communications, Energy and Natural Resources and Mr O’Connell, then had a further week to file their submissions. The appellant duly filed submissions, as did the respondents. The appellant submitted that there should be no costs award in favour of the respondents pursuant to the judgment delivered on 7 July 2020. He submitted that this should be so having regard to the unique and extraordinary circumstances, individual and in the round, described in his written submission furnished in advance of the appeal hearing. By way of alternative to a no costs order, the appellant asked for a stay on any costs awarded in favour of the respondents in the event that he received leave to appeal the decision of the Court to the Supreme Court. In that regard, the appellant attached to his costs submissions a draft Application for Leave to Appeal to the Supreme Court. The respondents submitted that they should get their costs in the normal way with respect to the dismissal of the appellant’s application to show cause pursuant to, inter alia, s. 16 of the Bankruptcy Act 1988. They submitted that there were no unique or extraordinary circumstances such that might warrant no order as to costs. It was further submitted that there was no basis, nor any necessity, for a stay to be put on the costs order pending the determination of the appellant’s application for leave to appeal to the Supreme Court in circumstances where the appellant had been adjudicated a bankrupt.

Held by Faherty J that while the appellant cited a list of factors which he said should persuade the Court to make no order as to costs, in reality the arguments advanced were an attempt to re-litigate matters aired in the High Court and before the Court of Appeal which, insofar as material to the Court’s decision, had been conclusively determined against the appellant. Faherty J held that as the respondents had been entirely successful in the appeal, they were entitled to their costs. Having had regard to s. 169(a) and (b) of the Legal Services Regulation Act 2015, she perceive no basis upon which the Court should decide otherwise. Nor did she find merit in the appellant’s submission that the Court should stay any costs award in favour of the respondents. She was not persuaded that it would be in the interests of justice to put a stay on costs, having regard to the protracted history of this case. Furthermore, she noted that any costs order would ultimately come out of the appellant’s bankruptcy estate on distribution; as such they were not recoverable in the immediate future. Accordingly, she held that, in the event that the appellant succeeded in his leave application the Supreme Court, which no doubt would be determined prior to any distribution from the bankruptcy estate, that Court would be able to deal with any application in respect of costs which the appellant may advance.

Faherty J held that the respondents were entitled to their costs with no stay thereon.

Respondents awarded costs with no stay thereon.

Ruling of Ms Justice Faherty dated the 6 ^th day of October 2020

1 Judgment in this matter was delivered by the Court on 7 July 2020 (“the principal judgment”). The appeal was dismissed on all grounds. At para. 123 of the principal judgment, I indicated a provisional view that costs should be awarded to the successful party in the appeal and that the Court would so order fourteen days from the date of judgment unless either party applied within that time to request that the Court should otherwise order. If applying, the appellant was to first notify the office in writing of his intention to object to the indicative costs proposal within the fourteen-day period and should file short written submissions within one week of his so notifying the Court. The respondents then had a further week to file their submissions.

2 The appellant duly filed submissions, as did the respondents.

3 The appellant submits that there should be no costs award in favour of the respondents pursuant to the judgment delivered on 7 July 2020. He submits that this should be so having regard to the unique and extraordinary circumstances, individual and in the round, described in his written submission furnished in advance of the appeal hearing. In particular, in advocating no order as to costs, the appellant relies on the...