P McD v The Governor of X Prison

JudgeClarke C.J.,O'Donnell J.,MacMenamin J.,Dunne J.,Charleton J.
Judgment Date04 October 2021
Neutral Citation[2021] IESC 71
CourtSupreme Court
Docket NumberS:AP:IE:2020:000094
The Governor of X Prison

[2021] IESC 71

Clarke C.J.,

O'Donnell J.,

MacMenamin J.,

Dunne J.,

Charleton J.




Negligence – Damages – Costs – Representatives of the appellant seeking costs – Whether there were unusual features of the case that would justify the court in making a partial award of costs

Facts: The Supreme Court, on 17th September, 2021, upheld the Court of Appeal’s decision overturning the finding of the High Court that the defendant/respondent Governor had been negligent, and awarding damages to the plaintiff/appellant/deceased ([2021] IESC 65). The decision of the Supreme Court was unanimous, albeit that members of the Court differed as to the precise reasoning leading to that conclusion. The Court, by a majority, also refused to make any declaration in relation to the conditions of the plaintiff’s detention in prison, and the operation of the complaints system. The starting point, as acknowledged by the representatives of the plaintiff was that the proceedings must be considered to have been wholly unsuccessful, and that the normal rule, set out in s. 168 of the Legal Services Regulation Act 2015, is that costs follow the event unless the Court should otherwise order. The defendant relied on that statutory rule, embodying as it does previous practice, to argue that the appropriate order was that the Governor should be entitled to recover the costs of the proceedings in the High Court, Court of Appeal and Supreme Court against the plaintiff’s estate, albeit that it seemed probable that the estate would have no assets with which to meet such an award. The representatives of the plaintiff argued that there were a number of unusual features of the case that would justify the Court in making “a partial award of costs”.

Held by the Court that the case, both in relation to the circumstances giving rise to its commencement, and to the retaining of representation for the plaintiff and the manner in which it proceeded, contained features sufficiently unique to mark the case out as unusual and perhaps extraordinary, and which could justify the Court in departing from the normal rule that costs follow the event. However, the Court held that it would be inappropriate to allow the plaintiff to recover costs of an appeal to the Court of Appeal and to the Supreme Court in which the plaintiff wholly failed, and which appeal was necessitated by what must be considered to be an erroneous decision on the law in the High Court. The Supreme Court considered it relevant that the arguments which succeeded in the Court of Appeal and the Supreme Court were not advanced in the High Court.

The Court held that it was not unreasonable in the unique circumstances of the case to have commenced the proceedings, and that the High Court proceedings required a careful assessment of the facts surrounding the plaintiff’s condition and his imprisonment and that, in the particular and unusual circumstances of the case, it would be appropriate to direct that the plaintiff recover 50% of the costs of the High Court proceedings to be taxed in default of agreement, and that no order should be made in relation to the costs of the appeal to the Court of...

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