Morrissey v The National Asset Management Agency Ltd

JudgeMr Justice David Keane
Judgment Date19 July 2017
Neutral Citation[2017] IEHC 476
Docket Number[2014 No. 2799P]
CourtHigh Court
Date19 July 2017

[2017] IEHC 476


Keane J.

[2014 No. 2799P]




Banking & Finance – Practice & Procedures – Costs of application – Normal rule – Extensive discovery – Change of solicitor

Facts: The plaintiffs sought an order for costs for moving an unsuccessful discovery application against the defendants while the defendants sought an order for costs against the plaintiffs. The defendants argued that normal rule should apply, and thus, they were entitled for the costs. The plaintiffs averred that the proceedings should be seen as a test case, and it was at the request of the defendants, the plaintiffs were made to make extensive discoveries.

Mr. Justice David Keane held that the defendants were entitled for their costs. The Court held that the proceedings were not public interest litigation. The Court observed that despite the assurance given by the defendants that they would make voluntary discovery, the plaintiffs continued to press their application for discovery, and thus, they must bear the costs. The Court held that the plaintiffs had instituted the proceedings for claiming damages against the defendants for their own benefit, and thus, the said claim did not have any public interest involved in it.

JUDGEMENT of Mr Justice David Keane delivered on the 19 July 2017

This judgment deals with the costs of the plaintiffs' unsuccessful discovery application against both the NAMA defendants and the State defendants in the above-entitled proceedings. I gave judgment in that application on 24 March 2017. It can be found under the citation [2017] IEHC 193. This judgment should be read in conjunction with that one.


The parties agree that, under s. 183 of the National Asset Management Agency Act 2009 (“the 2009 Act”), the present action falls within the category of legal proceedings to which Chapter 3 of the 2009 Act applies. The discovery application was an interlocutory application within those proceedings. It follows that it is governed by s. 189 of the 2009 Act. That section states:

“189.—(1) At the conclusion of each interlocutory application in any legal proceedings to which this Chapter applies, the court concerned shall make orders as to costs in respect of the application and, having received submissions from the parties as to the levels of those costs, the court shall measure those costs.

(2) Costs measured under subsection (1) shall be enforceable against the party directed to pay those costs. If the party fails to discharge those costs within 30 days of the court order measuring those costs, the court may on the application of any party to the proceedings or of its own motion impose terms as to the continuation of the proceedings pending the discharge of the costs.


The NAMA defendants seek an order for their costs of the discovery application against the plaintiffs on the basis that the application failed and the court should apply the usual rule that the costs of the application follow the event.


The plaintiffs seek an order for the costs of their unsuccessful discovery application against the NAMA defendants or, in the alternative, an order that each party should bear its own costs. They do so on eight separate grounds. In setting them out here, I have endeavoured to more shortly paraphrase those I more clearly understand. The others appear in quotation marks. They are as follows:

(i) These proceedings should be viewed as public interest litigation or as a test case brought by the plaintiffs in the public interest.

(ii) The defendants refusal to make voluntary discovery of the categories of documentation sought was unreasonable.

(iii) The discovery previously furnished by the NAMA defendants on a voluntary basis was deficient in form and content

(iv) The plaintiffs were obliged to seek discovery because these proceedings are being conducted on affidavit and, in the circumstances, documentary evidence is critical to the plaintiffs' case.

(v) “The plaintiffs should not be penalised for having to open law to the court to outline the legal principles applicable to discovery in this case as it (sic) would have had to do so in any event in the separate motion (against the State defendants) in the same proceedings which was (sic) also heard by the Court over the course of the trial.”

(vi) “The plaintiffs should not be penalised for seeking discovery of documents which they would have had to have sought in any event by way of an application for further and better discovery.”

(vii) “The plaintiffs had to prepare extensive written submissions to address the issue of res judicata in respect of some categories of discovery as alleged by the defendants up to the hearing of the motions, at which stage the defendants advised the court that they would no longer pursue this ground of challenge to the motion.”

(viii) “Counsel on behalf of NAMA and Capita offered additional discovery to the plaintiffs after the plaintiff brought the motion for discovery. But for bringing the motion it is reasonable to believe that such an offer would not have been forthcoming.”


I have considered these arguments as carefully as I am able, and none of them is persuasive.


First, this is a private law action in which the plaintiffs seek damages against both NAMA and the State defendants and in which the NAMA defendants counterclaim for summary judgment against the plaintiffs in the amount of €32,516,390.55, plus interest on that sum accruing from 16 April 2014. There is no doubt that, in one sense, where the lawfulness of the actions of a public body is challenged in a private law action involving that entity, there is a public law element in those proceedings. But it is equally clear that these proceedings have been brought by the plaintiffs – as is their perfect entitlement - in the pursuit of their own private interests. I can see nothing sufficiently exceptional about the nature or circumstances of this case that would warrant a departure on public interest grounds from the general rule that costs should follow the event; see Dunne v Minister for the Environment & Ors [2007] IESC 27.


Second, several of the plaintiffs' arguments – specifically, that the defendants' failure to make voluntary discovery was unreasonable; that the voluntary discovery previously made by the defendants was deficient in content or form; that the plaintiffs were obliged to open the law on discovery at length in one application or the other; and that the plaintiffs are, in any event, entitled to further and better discovery of the documentation concerned – invite the court to revisit or reconsider the merits of the discovery application. That is something that the court cannot do as it is functus officio in that regard.


On this point, I note with some surprise that the very extensive written submission on costs furnished by the plaintiffs contains an opening section entitled “key facts”, several of the assertions in which are difficult, if not impossible, to reconcile with the findings of fact in the judgment, in particular those set out in it at paragraph 43.


Third, insofar as these proceedings are being conducted upon affidavit, it is because the parties, including the...

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