Phelan and Others v Minister for Justice and Others
| Jurisdiction | Ireland |
| Judge | Mr. Justice Herbert |
| Judgment Date | 04 November 2005 |
| Neutral Citation | [2005] IEHC 350 |
| Date | 04 November 2005 |
| Court | High Court |
| Docket Number | [No. 154 J.R./2001] |
[2005] IEHC 350
THE HIGH COURT
BETWEEN
AND
RSC O.99 r1(1)
RSC O.99 r1(4)
SHELLY-MORRIS v BUS ATHA CLIATH 2003 1 IR 232
RSC O.84 r21(1)
RSC O.115
RSC O.58 r2
PRACTICE AND PROCEDURE:
Costs
Court's discretion in making order as to costs - Whether burden on party making application for costs to show that order for costs should not follow event - Whether respondents estopped from making application for costs in circumstances early hearing date on costs issue not sought - Whether length of time between judgment and application for costs amounted to abuse of process - Order for costs made (2001/154JR - Herbert J - 4/11/2005) [2005] IEHC 350
Phelan v Minister for Justice, Equality and Law Reform
Facts: The respondent successfully opposed the applicants’ application for judicial review and applied for the costs of the proceedings. The issue of costs was adjourned to allow the parties a reasonable opportunity to consider the judgment of the court. The respondent again sought the costs of the proceedings and the applicant opposed that application.
Held by Herbert J. in awarding costs to the respondent: That the proceedings comprised a lis inter parties and the applicant failed to establish the existence of very exceptional circumstances sufficient to deprive the respondent, as successful party to the costs of the proceedings. Furthermore, the respondents were not guilty of misconduct sufficient to override the rule that costs follow the event.
Reporter: L.O’S.
At the conclusion of my judgment, pronounced in this case on 7th October, 2003, the Respondents, having succeeded in total in their opposition to the application, through their counsel applied for the costs of the proceedings. The hearing of this Application for Judicial Review took nine days and, was correctly described by Counsel for both sides as involving detailed and complex issues. The judgment ran to twenty two pages. In the circumstances I decided, in the interests of justice, to adjourn dealing with the respondents” application for costs until the parties had a reasonable opportunity of considering the judgment. I therefore adjourned the issue of costs to a date to be fixed in the Central Office by agreement between the parties.
Order 99 rule 1(1) of the Rules of the Superior Courts, provides that, "the costs of and incidental to every proceeding in the Superior Courts shall be in the discretion of those Courts". Rule 4 of this same Order provides that, "the costs of every issue of fact or law raised upon a claim or counterclaim shall, unless otherwise ordered, follow the event".
In the case ofShelly û Morris v. Bus Átha Cliath [2003] 1 I.R. 232, it was held as follows by Denham J., with whom the other members of the Supreme Court concurred, at page 264 of the report:-
"In the recent decision ofGrimes v. Punchestown Developments Company Limited [2002] 4 I.R. 517, I stated:-"
2 “9. The normal rule is that costs follow the event. However, there are circumstances where a Court on the facts of a case determines that the normal rule will not apply. Indeed a successful applicant may not succeed in obtaining an order for costs if the facts indicate features which are unsatisfactory as to the way in which they acted, see, for example, Donegal County Council v. O'Donnell, (unreported, High Court, O'Hanlon J., June 25th, 1982). The burden is on the party making an application to show that the order for costs should not follow the general rule.
10. The Court exercises a discretion in making an Order as to costs. Of the words of O 99 r 1 “shall be in the discretion of” the publication of O'Floinn and Gannon, Practice and Procedure in the Superior Courts, states at page 888;
“The Court must exercise this discretion on the facts of each case and not apply a general rule:Hewthorn and Company v. Heathcott (1905) 39 I.L.T.R. 248…
As to the words “follow the event” O'Floinn and Gannon state at pp. 888 and 889:-
“That is to say, are ordinarily awarded to the successful party. In circumstances where either plaintiff or defendant succeeds outright, difficulties seldom arise although, as indicated by this rule, the Court may award costs to an unsuccessful party in appropriate circumstances…”"
In the instant case the Respondents had succeeded totally in their opposition to the Applicants” application for judicial review. This was both on the issue of a failure on the part of the Applicants to act promptly as required by the provisions of Order 84 rule 21(1) of the Rules of the Superior Courts and, on the merits. The onus therefore clearly lay on the Applicants to show cause why costs in this matter should not follow the event. Counsel for the Respondents had sought an order for costs at the conclusion of the judgment. In these circumstances, the opportunity for reflection permitted by the Court was overwhelmingly to the advantage of the Applicants. It afforded them an opportunity of closely studying the text of the judgment and formulating an argument as to why the court should not apply the general rule that costs follow the event.
I find on the evidence that the Applicants and their legal advisers...
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