O'Neill v The Commissioner of an Garda Siochana
| Jurisdiction | Ireland |
| Judge | Mr. Justice Allen |
| Judgment Date | 19 February 2021 |
| Neutral Citation | [2021] IEHC 112 |
| Docket Number | [2020 No. 3036 P.] |
| Court | High Court |
| Date | 19 February 2021 |
AND
[2021] IEHC 112
Allen
[2020 No. 3036 P.]
THE HIGH COURT
On 11th September, 2020 I gave judgment on a motion on behalf of the plaintiff, a Garda Superintendent who was suspended on pay, for a number of reliefs but principally for an interlocutory injunction requiring the Garda Commissioner to lift his suspension. O'Neill v. Commissioner of An Garda Síochána [2020] IEHC 448.
For the reasons set out, I refused all reliefs. As the judgment was delivered electronically, the parties made their submissions in relation to costs in writing. The defendants submit that the plaintiff should be ordered to pay their costs. The plaintiff submits that the costs should be reserved to the trial judge, alternatively that there should be a stay on any order for costs pending the final disposal of the action.
Counsel for the plaintiff rely on what is asserted to be “… a surviving general rule, (post the 2008 amendment of Order 99), that the costs of an interlocutory injunction be reserved to the trial judge…”. There is no such rule. Nor was there ever such a rule. It is true that for many years the practice was that the costs of many interlocutory applications, including applications for interlocutory injunctions, would be reserved to the trial judge but as Peart J. long ago observed those days are long gone.
The dawn of the modern enlightenment was the Rules of the Superior Courts (Commercial Proceedings), 2004 which inserted O. 63A into the Rules of the Superior Courts. O. 63A, r. 30 provided that in the case of commercial proceedings:-
“Upon the determination of any interlocutory application by a Judge, the Judge 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.”
The policy underlying O. 63A, r. 30 of discouraging the bringing of unnecessary or inappropriate interlocutory applications or the defending of necessary or appropriate applications was extended to all cases by the Rules of the Superior Courts (Costs) 2008 which introduced a new sub-rule 4A into O. 99, r. 1 which provided :-
“(4A) The High Court 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.”
Following the coming into force of ss. 168 and 169 of the Legal Services Regulation Act, 2015 on 7th October, 2019, a recast O. 99 was introduced by the Rules of the Superior Courts (Costs), 2019, which came into effect on 3rd December, 2019. Order 99, r. 2(3) now provides:-
“(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.”
In ACC Bank plc v. Hanrahan [2014] 1 I.R. 1 the Supreme Court was immediately concerned with the correct approach to the allocation of the costs of a motion for summary judgment and in doing so the court considered the rationale for O. 99, r. 1(4A) generally. Clarke J. (as he then was) said:-
“3.2 The reason for the introduction of that rule seems to me to be clear. While, historically, there had been a tendency to reserve the costs of most motions to the trial judge, a view has been taken that this can lead to injustice for, at least in very many cases, a judge who has heard a motion is in a better position than the trial judge to consider the justice of where the costs of that motion should lie. This will especially be so in cases where the trial court will not have to revisit the merits or otherwise of the precise issue that was raised by motion. For example, if there is a dispute over discovery then that dispute will have been resolved before the case comes to trial. Of course, discovered documents may well be relied on at the trial and, indeed, in some cases may turn out to be decisive. But, at least in the vast majority of cases, the fact that the documents, with the benefit of hindsight, have turned out to be either very useful or of very little use, will not add very much, if anything, to an assessment of whether the positions adopted by the parties on a discovery motion were reasonable or appropriate. A judge hearing a discovery motion will, therefore, in almost all cases, be in a better position than the trial judge to decide where the costs of such a motion should lie. Like considerations apply to many other cases such as motions for further and better particulars.
3.3 It is, of course, the case that such motions are very much ‘events’ in themselves. There are issues as to the appropriate scope of discovery or particulars. They are decided once and for all on the motion. The merits of the results of those motions are not, in the vast majority of cases, in any way revisited at the trial.
3.4 Slightly different considerations seem to me to apply in cases where, at least to a material extent, some of the issues which are before the Court at an interlocutory stage arise or are likely to arise again at the trial in at least some form. As I noted in Allied Irish Banks v. Diamond [2011] IEHC 505, and as approved by Laffoy J. in Tekenable Limited v. Morrissey & ors [2012] IEHC 505, somewhat different considerations may apply in cases where the interlocutory application will, to use language which I used in Diamond and which Laffoy J. cited in Tekenable ‘turn on aspects of the merits of the case which are based on the facts’”.
Heffernan v. Hibernia College Unlimited Company [2020] IECA 121 was a case in which the Court of Appeal was concerned with an appeal against an interlocutory costs order made in the High Court under the old regime but the terms of what was O. 99, r. 1(4A) were identical to the present O. 99, r. 2(3). Murray J. said:-
29. The relevant principles are clear. At the time of the hearing before the High Court, O.99, r.1(3) RSC provided the general rule that costs should follow the event. The Court was given the power to direct otherwise for special cause, to be mentioned in the order. Order 99 Rule 1(4A) RSC provided that the Court, upon determining any interlocutory application, should make an award of costs save where it was not possible justly to adjudicate upon liability for costs on the basis of the interlocutory application. That provision reflected both the preference articulated in the case law pre-dating the introduction of O.99, r.1(4A) RSC that those bringing and defending interlocutory applications should face a costs risk in the event that the Court determines that the stance they adopted was wrong ( Allied Irish Banks v. Diamond (Unreported, High Court, 7 November 2011) at p. 6 of the transcript of the ex tempore judgment of Clarke J.), and the fact that there will be cases in which it is not possible to determine where the proper burden of the costs of an interlocutory application should lie without the benefit of discovery, a complete marshalling by the parties of relevant evidence and in some cases an oral hearing ( Dubcap Ltd v. Microcorp Ltd (Ex tempore Unreported, Supreme Court, 9 December 1997 at p.4).”
In support of the application that the plaintiff should pay the costs of the motion, counsel for the defendants point first to the fact that the application was unsuccessful in its entirety, and then seriatim to the identification, analysis and ruling on the many issues raised on behalf of the plaintiff. The court, it is said, found that the plaintiff had not made out a fair issue to be tried, still less a strong case that was likely to succeed, that his suspension was invalid. It is submitted that the court can adjudicate upon the liability for costs without risk of injustice.
In support of the argument that the costs of the motion should be reserved, counsel for the plaintiff rely on a wide range of dicta in relation to the function of the court on an interlocutory motion, specifically on a motion for an interlocutory injunction. The court, it is said, is not finally...
To continue reading
Request your trial
-
Darren Keogh v A v Pound & Company Ltd
...Burke (Builders) Limited v. Tullyvarraga Management Company Limited [2020] IEHC 199 and O'Neill v. Commissioner of An Garda Síochána [2021] IEHC 112. 49 In my view, these cases are clearly distinguishable from the present. In each of the two cases relied on the plaintiff had failed on an ap......
-
Patrick Munnelly and Anne McGlynn v Start Mortgages Designated Activity Company, Ken Fennell and James Anderson
...if the plaintiffs were ordered to pay the costs of the motion. Reference was made to my judgment in O'Neill v. Garda Commissioner [2021] IEHC 112. 25 . Mr. Brady, for the defendants, argued that the motion had not become moot. The plaintiffs, it was said, were aware from November, 2020 that......