Promontoria (Arrow) Ltd v Richard Dineen

• Jurisdiction: Ireland
• Judge: Baker J.,Noonan J.,Faherty J.
• Judgment Date: 10 June 2021
• Neutral Citation: [2021] IECA 169
• Date: 10 June 2021
• Court: Court of Appeal (Ireland)
• Docket Number: Appeal Record No.: 2019/526

In the Matter of the Bankruptcy Act 1988 (As Amended)

In the Matter of a Petition of Bankruptcy by Promontoria (Arrow) Limited Against Richard Dineen

Between:

Promontoria (Arrow) Limited

Petitioner/Respondent

and

Richard Dineen

Appellant

[2021] IECA 169

Baker J.

Noonan J.

Faherty J.

Appeal Record No.: 2019/526

Bankruptcy Summons No. 5942

THE COURT OF APPEAL

Costs – Bankruptcy – Legal Services Regulation Act 2015 s. 169 – Parties seeking costs – Whether costs should follow the event

Costs – Bankruptcy – Legal Services Regulation Act 2015 s. 169 – Parties seeking costs – Whether costs should follow the event

Facts: The appellant, Mr Dineen, had unsuccessfully appealed against the order of the High Court (Pilkington J, 25th November 2019) by which he was adjudicated bankrupt, the appeal judgment delivered as [2021] IECA 145. The appellant stated that he should be awarded costs, or a portion thereof, for three reasons: the judgment had brought clarity to an important area of law regarding the meaning of a “liquidated sum” in the context of the bankruptcy legislation; the appellant brought the appeal despite having emerged from bankruptcy, and thus had nothing material to gain; and the Court should have regard to the fact that a further submission to the Court was made without the invitation of the Court, or the consent of the appellant, which amounted to a procedural unfairness. The respondent, Promontoria (Arrow) Ltd, argued that there was no reason to depart from the normal rule that costs follow the event, whether under s. 169 of the Legal Services Regulation Act 2015 or the previous O. 99 of the Rules of the Superior Courts.

Held by the Court that the judgment involved the application of well-established principles regarding the definition of a “liquidated sum”. The Court held that all decisions in a common law system to some extent clarify or explain existing legal principles and that fact alone does not make the case one of public importance justifying a departure from the principles regarding the award of costs: Lee v Revenue Commissioners [2021] IECA 114 and Collins v Minister for Finance [2014] IEHC 79. The Court held that the appellant’s argument that he had nothing material to gain from an appeal was not a factor justifying a departure from established costs principles, and the judgment identified some of the effects of adjudication that persist after a statutory discharge. The Court held that the respondent acted appropriately in drawing the attention of the Court to the case of Gladney v Tobin [2020] IECA 49, and an obligation exists on the legal representatives of parties to litigation to bring to a court’s attention a recent and relevant authority which may not otherwise come to its attention. The Court held that the appellant had the opportunity to address the Court on that authority and did not do so. The Court noted that the appellant withdrew his separate appeal against an order of Costello J: [2018] IEHC 430. The withdrawal of that appeal was confirmed in submissions lodged prior to the hearing, and the Court held that the costs of that appeal must in those circumstances fall to the respondent.

The Court held that, there being no reason why it should depart from the normal rule, it would award the respondent the costs of both appeals, to be adjudicated in default of an agreement.

Costs awarded to respondent.

Facts: The appellant, Mr Dineen, unsuccessfully appealed against the order of the Court of Appeal (Pilkington J) by which he was adjudicated bankrupt: [2021] IECA 145. The appellant stated that he should be awarded costs, or a portion thereof, for three reasons: the judgment had brought clarity to an important area of law regarding the meaning of a “liquidated sum” in the context of the bankruptcy legislation; the appellant brought the appeal despite having emerged from bankruptcy, and thus had nothing material...