Pepper Finance Corporation (IRELAND) DAC v Persons Unknown in Occupation of The Property Known as 21 Little Mary Street, Dublin 7

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Ms. Justice Máire Whelan
• Judgment Date: 24 October 2022
• Neutral Citation: [2022] IECA 240
• Docket Number: Court of Appeal Record No.: 2021/270 Court of Appeal Record No.: 2021/268 High Court Record No.: 2020/6889P

Between/

Pepper Finance Corporation (Ireland) DAC

Plaintiff/Respondent

and

Persons unknown in Occupation of the Property known as 21 Little Mary Street, Dublin 7

Defendants/Appellants

Between/

Pepper Finance Corporation (Ireland) DAC

Plaintiff/Respondent

and

Persons unknown in Occupation of the Property known as 31 Richmond Avenue, Fairview, Dublin 3

Defendants/Appellants

[2022] IECA 240

Whelan J.

Collins J.

Pilkington J.

Court of Appeal Record No.: 2021/270

High Court Record No.: 2020/6888P

Court of Appeal Record No.: 2021/268

High Court Record No.: 2020/6889P

THE COURT OF APPEAL

Civil

Attachment – Committal – Costs – Appellants seeking costs – Whether costs should be reserved

Facts: The appellants appealed to the Court of Appeal against a judgment delivered on 13 August 2021 and subsequent orders made by Sanfey J in attachment and committal motions in the High Court on 1st October 2021. In a judgment delivered on the 28th July, 2022, Whelan J held that the orders of the trial judge fell to be set aside as having been wrongly granted. A preliminary view was expressed that the appellants in their respective appeals were entitled to their costs, both in the Court of Appeal and in the proceedings before the High Court in relation to same. The respondent, Pepper Finance Corporation (Ireland) DAC (Pepper), contended for an order that the costs of same be costs in the cause or in the alternative, that costs should be reserved. It was further submitted that should the Court of Appeal not accede to either approach but be minded to make any order for costs in favour of the appellants, said order should be subject to a stay on adjudication and execution pending the determination of the substantive proceedings. Pepper contended that the orders made by Sanfey J on the 1st October, 2021, the subject of the successful appeal by the appellants, were characterised as being overturned: “primarily by reference to conclusions reached by the Court of Appeal concerning the alleged lack of awareness or understanding on the part of the appellants of the terms of various orders of the High Court and the Court of Appeal made prior to the initiation of the Contempt Application.” It was contended that several other arguments advanced on behalf of the various appellants had not found favour with either the High Court or the Court of Appeal. It was further submitted that the contentions concerning lack of awareness or understanding had not been fully tested and would not be so tested pending the substantive trial. It was contended that the proposed order could give rise to an injustice were different factual conclusions reached concerning the levels of awareness and understanding on the parts of the appellants following the substantive hearing.

Held by Whelan J that no cogent basis had been identified by the appellant for the proposition that the costs of the attachment and committal applications be made costs in the cause. She was satisfied that the Court of Appeal was best placed to address the issue of the costs of the appeal against the orders in the contempt motion including the order for attachment. She held that the appellants had been entirely successful and had dislodged orders that invoked the coercive jurisdiction of the High Court against them and each of them and their person, which in each case the Court of Appeal was satisfied were not properly made by the High Court. She held that the conclusion of the appeals led to a clear event in each appeal. She held that reserving of the said costs was not warranted in light of the conclusions of the Court of Appeal that the said orders were not validly made.

Whelan J held that the appellants were entitled to their costs in respect of the appeals, to be adjudicated in default of agreement between the parties, said costs to include: (a) the costs of and incidental to the appeal; (b) all their costs in respect of the motions before the High Court; and (c) the costs attendant upon the submissions and arguments in connection with the application concerning costs. She held that no basis had been identified for the granting of a stay. She held that a stay is not appropriate in circumstances where the matter at issue in the proceedings concerned the personal liberty of the individuals and the invocation erroneously brought on the part of Pepper of the coercive jurisdiction of the High Court as against the persons of each of the individual appellants.

Costs awarded to appellants.

COSTS JUDGMENT of Ms. Justice Máire Whelan delivered on the 24th day of October 2022

Introduction

1 . In the judgment delivered on the 28th July, 2022 in the above entitled appeals, a preliminary view was expressed that the appellants in their respective appeals were entitled to their costs, both in this court and in the proceedings before the High Court in relation to same. The respondent, Pepper Finance Corporation (Ireland) DAC (hereinafter “Pepper”), contend for an order that the costs of same be costs in the cause or in the alternative, that costs should be reserved. It is further submitted that should this court not accede to either approach but be minded to make any order for costs in favour of the appellants, said order should be subject to a stay on adjudication and execution pending the determination of the substantive proceedings.

2 . Briefly put, the reasons advanced on behalf of Pepper are set out in written submissions dated the 18th August, 2022 and include, inter alia, the following:

That the orders made by Mr. Justice Sanfey in the High Court on the 1st October, 2021, the subject of the successful appeal by the appellants, were characterised as being overturned:

“… primarily by reference to conclusions reached by the Court of Appeal concerning the alleged lack of awareness or understanding on the part of the appellants of the terms of various orders of the High Court and the Court of Appeal made prior to the initiation of the Contempt Application.”

It is contended that several other arguments advanced on behalf of the various appellants had not found favour with either the High Court or this court. It is further submitted that the contentions concerning lack of awareness or understanding aforesaid had not been fully tested and would not be so tested pending the substantive trial. It is contended that the proposed order could give rise to an injustice were different factual conclusions reached concerning the levels of awareness and understanding on the parts of the appellants following the substantive hearing.

3 . Pepper contends that as “ a matter of general principle, it is inappropriate that parties should devote time and expense in dealing with the adjudication or execution of costs orders while proceedings remain ongoing in which further costs orders may, and in all probability, will be made.” Reliance was placed on the decision in Carey v Sweeney [2021] IEHC 751, wherein a partial order for costs in favour of a litigant who had success on an interlocutory application was the subject of a stay.

4 . The appellants oppose the application and contend that the indicative view expressed at para. 220 of the judgment delivered herein on the 28th July, 2022 represents the appropriate approach in regard to the costs of the within application.

Statutory context

5 . Section 168(2)(c) of the Legal Services Regulation Act, 2015 provides:

“ Without prejudice to subsection (1), the order may include an order that a party shall pay –

(c) costs relating to one or more particular steps in the proceedings.”

Section 168(1)(a) provides –

“ Subject to provisions of this Part, a court may, on application by a party to civil proceedings, at any stage in, and from time to time during, those proceedings –

(a) order that a party to the proceedings pay the costs of or incidental to the proceedings of one or more other parties to the proceedings.”

6 . Order 99, rule 2(3) of the Rules of the Superior Courts provides:

“ Subject to the provisions of statute (including sections 168 and 169 of the 2015 Act) and except as otherwise provided by these Rules: ….

(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.”

7 . The approach of this court is to be informed by two key contextual factors. Firstly, at issue in this case was the invocation of the coercive jurisdiction of the High Court. Motions brought by Pepper seeking attachment and committal of the respective defendants/appellants had issued on the 12th February, 2021. The proceedings were heard before the High Court and judgment was reserved and subsequently delivered on the 13th August, 2021. Further orders were made, inter alia, on the 30th August, 2021. On the 1st October, 2021 the High Court granted to Pepper orders for the attachment of, inter alia, Margaret Hanrahan, Augustin Gabor, together with any other adult person in possession and/or occupation of the said...