Morgan v Slaneygio

• Jurisdiction: Ireland
• Judge: Ms. Justice Costello
• Judgment Date: 05 June 2019
• Neutral Citation: [2019] IECA 155
• Court: Court of Appeal (Ireland)
• Docket Number: [C.A. No. 400 of 2017],Neutral Citation Number: [2019] IECA 155
• Date: 05 June 2019

IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 160 OF THE PLANNING AND DEVELOPMENT ACT 2000 (AS AMENDED)

BETWEEN/

ELAINE MORGAN

AND (BY ORDER)

CARLOW COUNTY COUNCIL

APPLICANTS/RESPONDENTS

AND

SLANEYGIO LIMITED

AND

JOSEPH GERMAINE

RESPONDENTS/APPELLANTS

[2019] IECA 155

Costello J.

Whelan J.

McGovern J.

Costello J.

Neutral Citation Number: [2019] IECA 155

Record No. 2017/400

THE COURT OF APPEAL

Costs – High Court scale – Courts Act 1981 s. 17 – Appellants seeking to appeal against an order for costs – Whether the trial judge erred in awarding any costs on the High Court scale contrary to the mandatory provisions of s. 17 of the Courts Act 1981

Facts: The respondents/appellants, Slaneygio Ltd and Mr Germaine, appealed to the Court of Appeal against an order of the High Court of the 7th July, 2017 made by Baker J under s. 160 of the Planning and Development Act 2000 and against the order for costs. At the commencement of the appeal, counsel for the appellants indicated that the appeal was to be confined to the High Court order for costs. It was said the trial judge erred in awarding any costs on the High Court scale contrary to the mandatory provisions of s. 17 of the Courts Act 1981.

Held by Costello J that she did not agree that the trial judge had no discretion to award costs other than costs on the Circuit Court scale in the circumstances of this case; that being so, it was a matter for the exercise of her discretion as to how she awarded the costs of the application before her. Costello J held that it was clear that she exercised her discretion in a very judicious manner which reflected her view of the exigencies and justice of the case; her approach was considered and nuanced. Costello J saw no basis on appeal why the court should interfere with her exercise of her discretion in this matter.

Costello J held that she would dismiss the appeal and affirm the order of the High Court.

Appeal dismissed.

JUDGMENT of Ms. Justice Costello delivered on the 5th day of June, 2019

Introduction

1 The appeal in this case was against an order of the High Court of the 7th July, 2017 made by Baker J. under s.160 of the Planning and Development Act, 2000 (‘the PDA’) and against the order for costs. At the commencement of the appeal, counsel for the appellants indicated that the appeal was to be confined to the High Court order for costs. It was said the trial judge erred in awarding any costs on the High Court scale contrary to the mandatory provisions of s.17 of the Courts Act 1981 (as amended).

Background

2 The proceedings commenced on the 1st November, 2016 when Ms Morgan, the first named respondent, sought an interim injunction pursuant to s.160 of the PDA in relation to the demolition of the entire building formerly situate at No. 25 Dublin Street, Carlow. The facts have been fully set out in the judgment of the High Court of the 4th May, 2017, Morgan v Slaneygio [2017] IEHC 284. For the purposes of this appeal it is sufficient to note that the building was completely demolished over the Halloween bank holiday weekend in 2016. Demolition work commenced on Saturday morning at about 10.30 am and continued, despite protest and threat of legal action, until restrained by order of the High Court on Tuesday the 1st November, 2016 when the first named respondent applied for an injunction pursuant to s.160 of the PDA initially to restrain on an interim basis the continuation of certain demolition works and ultimately to require the restoration of the affected property to its original condition.

3 The High Court, Noonan J., granted an interim order and related reliefs and the matter was initially returnable to the 3rd November, 2016. Thereafter the matter was adjourned to the 10th and 17th of November, 21st of December, 2016 and the 11th January, 2017. On the 10th November, 2016 Carlow County Council (the second respondent) was joined as a co-applicant in its capacity as the relevant planning authority. On the 23rd February, 2017 the parties were directed to exchange written submissions directed to whether or not the works carried out were exempted development within the meaning of s.4 (1)(h) of the PDA and thus did not constitute an unauthorised development and therefore were subject to the discretion of the court in relation to granting reliefs pursuant to s.160. The first named respondent was given leave to issue a motion pursuant to Order 40, r. 1 to cross-examine the second named appellant on his two replying affidavits.

4 The application was heard on the 10th March, 2017 and on the 4th May, 2017 the trial judge gave her reserved decision. She held that the works in question were not exempted development within the meaning of s.4(1)(h) and that accordingly the works carried out over the Halloween bank holiday weekend were unauthorised development. Accordingly, the court had jurisdiction to make an order under s.160 and the remaining issue for decision was whether she should exercise her discretion so to do in the circumstances of the case.

5 The appellants contended that she should not make an order under s.160 as they were prepared to give an undertaking to restore the building. The precise parameters of this undertaking were never clarified. The trial judge directed that the second named appellant be cross-examined on his affidavits in order that she could resolve conflicts of fact on the affidavits, therefore meaning she could exercise her discretion whether or not to make an order pursuant to s.160.

6 On the 15th June, 2017, the second named appellant was cross-examined on his affidavits for several hours. Once this had concluded, counsel for the appellants accepted that in principle it was appropriate for the trial judge to make an order under s.160. The remaining issue was the form of that order. Counsel for the appellants proposed submitting plans and construction drawings for the restoration of the demolished premises ‘as close as makes no difference’ which could be attached to the order to be made by the High Court. The trial judge noted that the appellants accepted that it was appropriate that she exercise her discretion to make an order and adjourned the matter for two weeks to allow counsel for the appellants to propose a form of order to the respondents to ascertain whether an agreement could be reached between the parties.

7 When the matter came back before the court on the 7th July, 2017, no detailed drawings, plans or construction drawings had been furnished, though scale plans and elevations were furnished on the morning to the parties. The judge did not accept that these could form the basis of an order and as a result she gave a very detailed order requiring inter alia that the drawings and specifications for the reconstruction of the premises were to be prepared by the second respondent's conservation architect.

8 In relation to the costs incurred in the application to date she made a very considered and particular order in favour of the applicants against the respondents jointly and severally to be taxed in the following terms:-

‘It is ordered that the costs of the hearing before Noonan J. on the 1st November, 2016 and the costs of the hearing before this Court on the 10th and 17th November 2016 be taxed on the High Court scale, thereafter the costs of the within proceedings are to be taxed on the Circuit Court scale including the cost of the transcript save and except for the cost of the proceedings on the 7th July, 2017 and the legal submissions of the parties that are to be taxed on the High Court scale.’

9 This court has been given no note of her reasons for making an order in these terms, though the following facts and arguments were advanced on the application for costs which it may be inferred were relevant to her decision. The demolition work commenced at 10.30 am on the Saturday of the bank holiday weekend, meaning that public offices were closed and it was not possible to obtain a certificate of rateable valuation for the premises in advance of moving the application. The Circuit Court was not sitting in Carlow on the 1st November, 2016 when the first named respondent was in a position to make an ex parte application to court but it was possible to make that application that morning to the High Court. As the applicant (the first named respondent) was an established barrister practising on the South Eastern Circuit, it was apprehended that a judge of the circuit would recuse him or herself from hearing an application for an interim injunction ex parte where she was the moving party, which in turn, in all likelihood, would lead to a delay in moving the application. The matter was extremely urgent as the demolition works were continuing on the 1st November, 2016. There was no such risk if the matter was brought in the High Court.

10 It is to be inferred from her order that the trial judge was satisfied in all the circumstances that it was appropriate to commence the proceedings in the High Court and she awarded costs on the High Court scale for the ex parte application and the 10th and 17th November, 2016. It is also to be inferred that once the certificate of rateable valuation for the premises was placed before the court by the appellants she accepted that the matter could have continued upon remittal in the Circuit Court. For this reason, she awarded costs of the proceedings on the Circuit Court scale thereafter, including the hearing on 10th March, 2017, save as regards the written submissions and the hearing on 15th June, 2017.

11 She ordered the parties to file written submissions and she gave a reserved judgment on the issue of whether the ‘works’ were exempted development. She believed it was appropriate that the costs of the written submissions should be on the High Court scale. While there is no note of the judge's reasoning on this point there can be no doubt that the importance and...