Porterridge Trading Ltd v First Active Plc and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 21 February 2008
• Neutral Citation: [2008] IEHC 42
• Court: High Court
• Date: 21 February 2008

Porterridge Trading Ltd & Ors v First Active & Ors

BETWEEN

PORTERRIDGE TRADING LIMITED

PLAINTIFFS

AND

FIRST ACTIVE PLC

DEFENDANT

AND

BETWEEN

PORTERRIDGE TRADING LIMITED

PLAINTIFFS

AND

BERNARD DUFFY

DEFENDANT

AND

BETWEEN

MOOREVIEW DEVELOPMENTS LIMITED, SALTHILL PROPERTIES LIMITED, VALEBROOK DEVELOPMENTS LIMITED, SPRINGSIDE PROPERTIES LIMITED, DRAKE S.C. LIMITED, MALLDRO S.C. LIMITED, THE POPPINTREE MALL LIMITED, AND VAN BLONDON PROPERTIES LIMITED

Porterridge Trading Ltd & Ors v First Active & Ors

PLAINTIFFS

AND

FIRST ACTIVE PLC AND RAY JACKSON

DEFENDANT

[2008] IEHC 42

[No. 18785 P/2004]

[No. 1645 P/2006]

[No. 9018 P/2003]

THE HIGH COURT

PRACTICE AND PROCEDURE

Costs

Amend statements of claim - Significant hearing required - Costs of application and consequent amendments to other pleadings - Application made shortly prior to hearing date of claim - Costs âÇÿthrown away' - Proceedings already amended on previous occasion - Factors to be taken into account in awarding costs - Whether costs of application to amend should always be borne by party seeking amendment - Whether costs of significant interlocutory hearing should be treated as separate event - Whether amendments could reasonably have been included in the original proceedings - Whether necessary for two applications to amend proceedings - Whether reasonableness of opposition to amendments a factor in awarding costs - Bell v Peterson [1996] ILRM 290, Wolfe v Wolfe [2001] IR 313 and Veolia Water v Fingal County Council [2006] IEHC 240 [2007] 2 IR 81 considered - Costs under all categories awarded against party seeking amendment (2003/9018 P, 2004/18795P and 2006/1645P - Clarke J - 21/2/2008) [2008] IEHC 42

Porterridge Trading Ltd v First Active plc

Facts: The plaintiffs in the last of the proceedings in the case were permitted by the Court to amend their respective claims. The precise order for costs was to be determined. Any additional costs were to be allowed to the appropriate defendants. The issue arose as to the determination of the costs of the motions to amend, the consequential costs of the amendments and the costs thrown away was sought.

Held by Clarke J. that each of the categories of cost sought on behalf of First Active in respect of the Mooreview and Porterridge proceedings and the receiver should be awarded to those parties against the relevant plaintiffs. Where interlocutory applications became substantive matters in their own right it was appropriate for the Court to consider whether costs should follow the event as to each matter. A number of factors framed the context in which the event was seen. Two separate applications to amend were brought by the plaintiffs. It was not appropriate to depart from ordinary rules of practice as to the costs of a motion to amend.

Reporter: E.F.

DELANY & MCGRATH CIVIL PROCEDURE IN THE SUPERIOR COURTS 2ED 2005 PARA 5.150

BELL v PEDERSON 1996 1 ILRM 290

WOLFE v WOLFE 2001 1 IR 313

VEOLIA WATER UK PLC & ORS v FINGAL CO COUNCIL UNREP CLARKE 22.6.2006 2006/57/12085 2006 IEHC 240

1 Mr. Justice Clarke delivered on the 21st day of February, 2008

1. Introduction

2 2 1.1 This ruling is supplemental to a judgment delivered by me in these connected cases on the 7 ^th of September last. The terminology used in this ruling follows that adopted in that judgment ("the judgment").

3 3 1.2 As appears from the judgment, and for the reasons which I set out in it, I came to the view that, on balance, the plaintiffs in what I described as both the Mooreview proceedings and the Porterridge proceedings should be permitted to amend their respective claims in those proceedings, in the manner for which they have sought leave. Further details of the amendments permitted can be found in the judgment.

4 4 1.3 At para. 4.15 of the judgment I indicated that I would hear Counsel further on the precise order as to costs which I should make. However, I noted that "any additional costs whether of pleadings, discovery or otherwise which can be said to flow from the amendments, should be allowed to the appropriate defendants". I further indicated that in advance of the then proposed further case management meeting referred to in the judgment, a letter should be written by each of the relevant defendants specifying the precise order as to costs to which would be sought. In that context it is appropriate to turn to the subsequent procedural history of the matter.

2. Procedural History

5 2 2.1 As is clear from the judgment amendments were sought and obtained in two separate sets of proceedings. In the Mooreview proceedings, solicitors for First Active wrote, on the 4 ^th of October, to the plaintiff's solicitors indicating that they would seek the costs of the motion to amend together with what were described as:-

"All additional consequential costs that have been and continue to be incurred by the Bank arising from the re-amendment of the plaintiff's statement of claim to include inter alia:"

6 · Raising further particulars.

7 · Preparing and serving the amended defences.

8 · Responding to any further particulars that may be raised by the plaintiffs arising out of the re-amended defences.

9 · Responding to the plaintiff's further discovery requests in respect of the re-amended claim.

10 · Preparing a further discovery request on behalf of the Bank.

11 · Preparing and making further discovery in respect of the re-amended claim".

12 3 2.2 In relation to the Porterridge proceedings Solicitors on behalf of First Active also sent a letter of the 4 ^th October seeking the costs of the motion to amend, consequential costs which were specified in terms identical to those used in the letter in the Mooreview proceedings to which I have already referred, but, in addition, sought what were described as "thrown away costs" which were said to have been incurred in preparation for an anticipated hearing of that case which had been scheduled to take place in May or June of last year and which was, it was said, postponed at a very late stage by reason of the amendment application. The relevant costs were specified as including inter alia:-

13 · "The preparation of books for trial including a book of pleadings and a book of defendant authorities.

14 · The preparation of written legal submissions.

15 · Substantial work in attempting to prepare an agreed statement of facts in advance of trial.

16 · Liaising with potential witnesses in advance of trial".

17 4 2.3 By a separate letter of the 4 ^th October, 2007, Solicitors on behalf of Mr. Jackson sought the costs of the application to amend as against him and also sought consequential costs of the amendments which, while not expressed in identical terms to the manner in which the similar request on behalf of First Active was maintained, were, in substance, specified to the same effect.

18 5 2.4 For reasons which it is unnecessary to set out here, it was not possible to conduct the case management meeting contemplated for October until the end of November and the issues arising out of the correspondence to which I have referred came to be argued by the parties on the 30 ^th November, together with very many other issues which required to be addressed in the course of a two day case management meeting. As many of the other matters then in dispute had the potential to affect the timescale within which the proceedings as a whole were likely to become ready for trial, I gave priority to giving judgment on those issues. This ruling is directed towards the cost issues which I have identified which do not, of course, affect the ongoing proceedings in any material way. I now turn to the issues which arise.

3. The Issues

19 2 3.1 As is clear from the correspondent to which I have referred and from the argument conducted on foot of that correspondence, there are, in substance, three groups of issues which need to be considered. There are:-

20 (i) The costs of the motions to amend which include applications on behalf of both First Active and Mr. Jackson for their costs of the motions to amend (in both cases so far as First Active is concerned and in the Moorview proceedings so far as Mr. Jackson is concerned). There is also a similar application on behalf of the respective plaintiffs for their costs of the motions to amend which was moved by Counsel on their behalf at the hearing before me;

21 (ii) The consequential costs of the amendments sought by both First Active and Mr. Jackson in their respective Solicitors' letters of the 4 ^th October, 2007;

22 (iii) The costs thrown away sought by First Active in the Porterridge proceedings.

23 I propose to deal with each in turn.

4. The costs of the applications to amend.

24 2 4.1 It was necessary, in this context, to distinguish between the issues which arose as and between First Active and the respective plaintiffs on the one hand and Mr. Jackson and the respective plaintiffs on the other hand. As pointed out in the judgment it had appeared to Counsel for Mr. Jackson (not at all unreasonably) on the basis of a draft of the proposed amendments which had been supplied in advance of the hearing of the application to amend, that the amendments had no direct bearing on the substantive case to be made as against Mr. Jackson. It was, of course, the case that some of the amendments sought would have had an effect on Mr. Jackson's position as Receiver if the contentions sought to be pleaded were to be made out, for the allegations were such that, if substantiated, could affect the validity of the appointment of Mr. Jackson as receiver. However save in that sense Mr. Jackson was not affected by the amendments and would not, in reality, have been likely to have had anything significant to say at the trial of the action in respect of those issues, even if...