Re ""La Lavia""
| Jurisdiction | Ireland |
| Judge | Hamilton C.J. |
| Judgment Date | 01 January 1999 |
| Date | 01 January 1999 |
| Docket Number | [1986 Nos. 11076P, 11077P & 11078P and S.C. No. |
| Court | Supreme Court |
1998 WJSC-SC 8863
THE SUPREME COURT
HAMILTON C.J.
O'FLAHERTY J.
DENHAM J.
BETWEEN:
and
BETWEEN:
and
BETWEEN:
and
Citations:
RSC O.9 r1
HANAFIN V MIN FOR ENVIRONMENT UNREP SUPREME 1.3.1996 1996 5 1262
LA LAVIA, JULIANA & SANTA MARIA DE LA VISION, IN RE, 1996 1 ILRM 195
WEBB V IRELAND 1988 IR 353
Judgment delivered on the 16th day of December 1997 by Hamilton C.J.
This is an appeal brought by the above-named Defendants (hereinafter referred to as the Appellants) against the judgment of Mr. Justice Barr delivered on the 14th day of October 1996 and the order made in pursuance thereof on that date.
The aforesaid judgment related to the costs of proceedings heard by him over a period of approximately fifteen days.
These proceedings related to claims made by the above-named Plaintiffs (hereinafter referred to as the Respondents) arising out of the discovery by them of three wrecks, which had formed part of the Spanish Armada wrecked off the Irish Coast in 1588, and their contents, at Sreedagh, Co. Sligo in May, 1985, the said wrecks being the vessels referred to in the title of these proceedings.
The nature of these proceedings are set forth in detail in the comprehensive judgment delivered by Mr. Justice Barr on the 26th day of July, 1994, which set forth the background to the case.
On the 25th day of October, 1994 a detailed and comprehensive order was made, based on the judgment and findings of Mr. Justice Barr.
The said order however provided that the question of the costs of the said proceedings be adjourned generally with liberty to re-enter.
The Appellants appealed to the Supreme Court against the Order and findings of the learned trial judge.
By order dated the 27th day of July, 1995, the Supreme Court directed that the judgment and order of the High Court be varied asfollows:-
2 "1. that the findings at paragraph (c) and (d) bevacated;
2. that the direction at paragraph 1 of the said order be deleted and replaced by a provision that the matter of the Plaintiff's application for a licence be progressed by way of afresh application to the Commissioners of Public Works - the Commissioners having undertaken to consider such application with due expedition;
3. The provisions contained at paragraphs 2, 3, 4, 5, 6 and 8 of the said order be vacated."
The terms of this order must be read in conjunction with the aforesaid order of the High Court.
The Supreme Court then ordered that the question of the costs of the proceedings in the High Court be remitted to that Court fordetermination.
The learned trial judge delivered his judgment on the question of the costs of the proceedings before him on the 14th day of October, 1996 and awarded thePlaintiffs/Respondents their costs of the action in the High Court against the Appellants on a party and party basis, including reservedcosts.
The Appellants have appealed against such judgment and order andseek
(a) an order setting aside the order of the High Court made on the 14th day of October, 1996 granting the Plaintiff/Respondent their costs including reserved costs in the High Court proceedings;
(b) an order granting the Defendant/Appellants their costs in the High Court proceeding such costs to be taxed in default ofagreement.
The grounds upon which such relief is sought in this Court arethat:-
(a) the learned trial judge erred in holding that the issue of the application of the maritime law of salvage to archaeological wrecks was a matter of public importance such as to justify the Plaintiffs/Respondents being awarded their costs in the High Courtproceedings;
(b) the learned trial judge erred in holding that the Plaintiff/Respondents had succeeded in the proceedings in obtaining anon-intrusive licence to carry out a survey to assess the importance of the find when this Honourable Court had held that the Plaintiffs/Respondents had not in fact applied for such a licence;
(c) the judgment and order of the learned trial judge were against the weight of the evidence and failed to take into account sufficiently or at all the judgments and order of this Honourable Court.
(d) the learned trial judge erred in granting the Plaintiffs/Respondents their costs in circumstances where there was a lodgment and the Plaintiffs/Respondents failed in their claim that the Courts should fix an award in their favour, this Honourable Court having determined that the award was a matter for the Commissioners of Public Works in Ireland.
Order 99 , Rule 1 of the Rules of the Superior Courts providesthat:
The costs of and incidental to every proceeding in the Superior Courts shall be in discretion of those courts respectively.
While as a general rule costs are awarded to a successful party, the discretion vested in the Court must be exercised on the facts of each case and a court may award costs to an unsuccessful party in appropriatecircumstances.
Costs have, in the past, been awarded to unsuccessful parties where justice requires that they should be awarded and where a party, though unsuccessful has raised issues of public importance, e.g. Hanafin.v. Minister for Environment and Others, unreported but delivered by this Court on the 1st March 1996.
The learned trial judge in the exercise of such discretion in this case awarded costs to the Respondent on the grounds set forth by him in the course of his judgment and theAppellants have appealed against such award on the four grounds set forth in their Notice of Appeal.
In the course of his judgment, the learned trial judge stated at Page 5 thereof that:-
"The Respondent's claim was based on two alternate grounds: first in Admiralty law as salvers in possession and secondly as finders of valuable historical artefacts which in law are the property of the State. It was patently reasonable to present their claim on that dual basis. In the event, they failed on the first ground, the legal arguments in relation to which having taken up several days at the trial. The finding of this court has not been appealed. However it is proper to take into account that as maritime archaeology is still in its early adolescence and has been significantly developed only in quite recent times in the wake of modern electronic technology, there is a dearth of judicial precedents in the common law world, and on that particular issue, the action proceeded in largely unchartered waters. It is hoped that the cartography which has now emerged will be regarded as an acceptable development of maritime law in that area."
He further stated that:-
"the issue of maritime law which they raised has given rise, it seems for the first time in the common law world, to an assessment of the status of archaeology in Admiralty law. That is a question of obvious importance and I am satisfied that in all the circumstances there should be no deduction in the Respondent's costs arising out of the judgment of the Court on that issue."
There is no doubt but that the issue referred to by the learned trial judge was an issue of public importance and that the decision thereon was of value to the State and the Appellants.
I am satisfied that the learned trial judge was entitled to have regard to this factor in the exercise of his discretion with regard to the award of costs.
Before dealing with the grounds set forth at (b) and (c), I consider it appropriate, at this stage to deal with ground (d).
This ground relates to the fact that the Appellants had made lodgments with their defence, which lodgments were consolidated.
It was submitted by the Appellants that the Respondents having failed in their claim that the Courts should fix an award in their favour were not entitled to their costs because the Appellants had fairly met their claim by making a lodgment.
It was submitted on behalf of the Appellants that the...
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