Print and Display Ltd v Dowdall
| Jurisdiction | Ireland |
| Judge | Mr. Justice Mark Sanfey |
| Judgment Date | 24 July 2020 |
| Neutral Citation | [2020] IEHC 366 |
| Docket Number | [No. 2018/279 COS] |
| Court | High Court |
| Date | 24 July 2020 |
IN THE MATTER OF DOMINAR GROUP LIMITED (IN VOLUNTARY LIQUIDATION) AND IN THE MATTER OF SECTION 638 OF THE COMPANIES ACT, 2014
[2020] IEHC 366
Mark Sanfey J.
[No. 2018/279 COS]
THE HIGH COURT
Costs – Liquidator – Removal – Respondent seeking costs – Whether costs should follow the event
Facts: The High Court (Sanfey J), on 8th May, 2020, delivered a judgment on the motion of the applicant, Print and Display Ltd, seeking an order pursuant to s. 638 (1) (b) of the Companies Act 2014 for the removal of the respondent, Mr Dowdall, as liquidator of Dominar Group Ltd (in voluntary liquidation). In that judgment, Sanfey J refused the application, and invited submissions from the parties as to the orders to be made, particularly in relation to the issue of costs. The respondent, having had the application determined in his favour, submitted that costs should follow the event. The applicant relied heavily on the decision of Clarke J in Veolia Water UK Plc & Ors v Fingal County Council [2006] IEHC 240. The applicant submitted that the “overall principle” to be applied by the court is as set out in that judgment: “it is incumbent on the court, at least in complex cases, to at least give consideration to whether it is necessary to engage in a more detailed analysis of the precise circumstances giving rise to such costs having being incurred before awarding costs. Furthermore, it seems to me to be incumbent on the court to attempt to do justice to the parties by fashioning, where appropriate, orders of costs which do more than simply award costs to the winning side” (para. 2.2). The applicant also sought a stay on execution of costs in the event of an appeal.
Held by Sanfey J that there could be no doubt that the “event” as regards costs in this case was the refusal of the application. In all the circumstances, Sanfey J considered that it was appropriate to regard the costs of the application heard and determined by O’Connor J as costs in the cause, and this would be reflected in the order of the court. In view of the complexity of the issues in the case and the fact that substantial legal issues were involved, Sanfey J thought it would be prudent and appropriate to grant the applicant’s application for a stay on execution of costs in the event of an appeal.
Sanfey J held that the order of the court would be as follows: an order dismissing the application; an order for costs, to include all reserved costs, in favour of the respondent, to be adjudicated upon if not agreed; and an order staying execution of the aforesaid order for costs until the expiry of the period for appeal, and if such an appeal is lodged, the stay to continue until the determination of the appeal.
Application dismissed.
On 8th May, 2020, I delivered a judgment on the applicant's motion seeking an order pursuant to s.638 (1) (b) of the Companies Act, 2014 for the removal of the respondent as liquidator of Dominar Group Ltd (in voluntary liquidation) (“the Company”). In that judgment, which should be read in conjunction with this judgment, and which is cited at [2020] IEHC 208 and was delivered electronically, I refused the application, and invited submissions from the parties as to the orders to be made, particularly in relation to the issue of costs.
In the event, both sides made detailed written submissions, with the respondent proffering supplemental submissions in response to the submissions of the applicant. The submissions related entirely to the issue of costs, and whether a stay should be placed on any order made.
The respondent, having had the application determined in his favour, submits that costs should follow the event, but in considering whether to depart from this fundamental principle, the court is required to consider “whether the requirements of justice indicate that the general rule should be displaced” [ Fyffes Plc v. DCC Plc [2009] 2 I.R. 417 at p.679]. The respondent refers to the non-exhaustive criteria in s. 169 of the Legal Services Regulation Act, 2015 to be considered by the court in determining whether to depart from the rule.
The respondent submits that the judgment of the court “represents a wholesale rejection by the court of the fundamental basis for the applicant's claim” [para. 3.11 written submissions], and that “it is clear that the applicant's claim was fundamentally misconceived” [para. 3.12]. It is submitted that the applicant bears the onus of demonstrating that there are grounds to depart from the rule that costs follow the event, and that there are no such grounds, having regard to the factors set out at section 169 of the Legal Services Regulation Act, 2015, and that there has been nothing in the conduct of the liquidator “either prior to or in the course of proceedings which would warrant fixing him with the costs of this failed attempt to remove him from office” [para. 4.1 submissions].
The applicant relies heavily on the decision of Clarke J. (as he then was) in Veolia Water UK Plc & Ors v. Fingal County Council [2006] IEHC 240 (“ Veolia”). The applicant submits that the “overall principle” to be applied by the court is as set out in that judgment:
“… it is incumbent on the court, at least in complex cases, to at least give consideration to whether it is necessary to engage in a more detailed analysis of the precise circumstances giving rise to such costs having being incurred before awarding costs. Furthermore, it seems to me to be incumbent on the court to attempt to do justice to the parties by fashioning, where appropriate, orders of costs which do more than simply award costs to the winning side”. [para. 2.2].
The applicant then sets out a number of factors in the proceedings that bear consideration. These may be summarised as follows:
(a) That the application in the proceedings to cross-examine, in respect of which costs were reserved by O'Connor J., comprised a distinct contested event, which was decided in the applicant's favour, and there were “significant elements of the oral evidence [which] did not appear on affidavit…”.
(b) The notice party chose not to participate in the proceedings or express a view of any sort until his belated affidavit of 15th January, 2020. The applicant contends that “the landscape changed at a point when the applicant was entitled to form a view and pursue a case which contemplated no objection from the notice party”.
(c) “Significant new information” came to light during the course of the hearing which could have been disclosed beforehand “and would have had a bearing on the litigation strategy adopted”.
(d) “The respondent chose not to disclose certain information by way of documentary records notwithstanding his having had an opportunity to do so”.
(e) By letter of 28th June, 2018, the applicant's solicitors wrote to the respondent setting out their concerns prior to bringing the application. No substantive response was received, and the applicant issued its application on 16th July, 2018. It was not until the...
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