Rory Mason v ILTB Ltd T/A Gillen Markets and Dermot Browne

• Jurisdiction: Ireland
• Judge: Ms. Justice Butler
• Judgment Date: 29 July 2021
• Neutral Citation: [2021] IEHC 539
• Court: High Court
• Docket Number: [2021 No. 3515 P.]

Between

Rory Mason

Plaintiff

and

ILTB Limited T/A Gillen Markets and Dermot Browne

Defendants

[2021] IEHC 539

[2021 No. 3515 P.]

THE HIGH COURT

Interlocutory injunctions – Termination of employment – Balance of justice – Plaintiff seeking interlocutory injunctions restraining the first defendant from taking steps directed towards the termination of the plaintiff’s employment – Whether the least injustice would be caused by restraining the defendants from continuing with the disciplinary process

Facts: The plaintiff, Mr Mason, had been successful in obtaining interlocutory relief to prevent steps being taken to progress an investigation into matters referred to in a letter from the solicitor of the defendants, ILTB Ltd and Mr Browne, dated 26th April, 2021 and to prevent his dismissal on the grounds referred to in that letter. Consequently, the plaintiff argued that as he has been successful in the “event” or in the outcome of the interlocutory hearing, he was entitled to an order for his costs. The defendants submitted that, as there were key facts in dispute between the parties which were not resolved in the interlocutory judgment and which could not be resolved until all evidence had been heard at the substantive trial, the costs should either be reserved or made costs in the cause. The plaintiff requested the High Court to make widespread orders in terms of paras. 1, 3, 4, 6, 8 and 9 of his notice of motion and an order restraining the defendants from implementing or giving effect to the board resolution of 28th April, 2021 or the decision made on that date to suspend the plaintiff. The defendants requested that the orders to be made by the court should be restricted to those related exclusively to the impugned process arising out of the matters raised with the plaintiff.

Held by Butler J that she did not share the view of the defendants that this was “one of those cases” in which findings had been made on the basis of asserted but disputed facts which would be fully revisited at the trial of the action. She did accept the defendants’ argument that the order for costs that she proposed making in the plaintiff’s favour should be stayed pending the outcome of the substantive action both because of the ongoing working relationship between the parties and the fact of ongoing litigation, or perhaps more accurately because of both of those matters in conjunction with each other. She said this because it could never be a general principle that an employee who litigates successfully to maintain his employment should be deprived of his legal costs because of the existence of an on-going employment relationship between the parties; however, the combination of factors in this case made it appropriate that the order for costs that she was making in the plaintiff’s favour should be available for the purposes of set off to the defendants should they succeed at trial. She held that she would make an order in terms of para. 3 of the plaintiff’s notice of motion restraining the defendants from proceeding with any investigation of and concerning the plaintiff pertaining to any of the matters set forth in the correspondence sent on behalf of the first defendant by its solicitors on 26th April, 2021, an order restraining the defendants from implementing or giving effect to the board resolution of 28th April, 2021 or the decision made on that date to suspend the plaintiff and an order restraining the defendants from publishing any matter of or concerning the plaintiff pertaining in any way to alleged wrongdoing referred to in the letter sent on behalf of the first defendant and dated 26th April, 2021. She held that all orders relating to the defendants would also apply to the servants and agents of either defendant. She held that she would make an order restraining the defendants from taking any steps directed at the termination of the plaintiff’s employment with the first defendant arising out of the matters set out in the correspondence from the first defendants’ solicitors dated 26th April, 2021.

Butler J held that she would direct that, unless the plaintiff’s statement of claim was delivered by close of business on 6th August 2021 the injunction granted would lapse.

Costs awarded to plaintiff.

JUDGMENT of Ms. Justice Butler delivered on the 29th day of July, 2021

1 This ruling primarily concerns two issues arising in consequence of my earlier judgment of 8th July, 2021 [2021] IEHC 477. The first of these is the question of the costs of the interlocutory application which is determined by my earlier judgment and the second is the form of order or orders that the court should now make. The parties have made helpful written submissions on these issues and also on what directions, if any, should now be made to progress the hearing of the substantive action. In light of the detailed submissions made by both parties I do not regard it as necessary to hold a further hearing in relation to these consequential orders.

Costs

2 The plaintiff has been successful in obtaining interlocutory relief to prevent steps being taken to progress an investigation into matters referred to in a letter from the defendants' solicitor dated 26th April, 2021 and to prevent his dismissal on the grounds referred to in that letter. Consequently, the plaintiff argues that as he has been successful in the “event” or in the outcome of the interlocutory hearing, he is entitled to an order for his costs. The defendants submit that, as there were key facts in dispute between the parties which were not resolved in the interlocutory judgment and which cannot be resolved until all evidence has been heard at the substantive trial, the costs should either be reserved or made costs in the cause.

3 Both parties agree that the applicable legal principles are to found in the Legal Services Regulation Act, 2015 and O. 99 of the Rules of the Superior Courts and, indeed, both point to this Court's judgment in Thompson v. Tennant (No. 2) [2020] IEHC 693 as regards the application of those principles in the case of interlocutory injunction. In essence, O. 99, r. 2(3) requires the court to make an order in respect of the costs of any interlocutory application “save where it is not possible justly to adjudicate upon liability for costs on the basis of the interlocutory application”. Order 99, rule 3(1) requires the court, in considering whether to award costs in respect any “step in any proceedings” to have regard to the matters set out in s. 169(1) of the 2015 Act. Section 169(1) gives statutory effect to the principle that costs should follow the event unless the court orders otherwise. The section contains a list of the type of matters that a court should have regard to when considering whether or not the default position of costs following the event should apply. No specific argument was directed by the parties, and especially the defendants who are facing an application for costs against them, to any of these matters and, consequently, the court's analysis proceeds from the proposition that costs should normally follow the event unless the court is satisfied that it is not possible at this stage to justly make an adjudication as to who should bear liability for costs. The defendants' submissions have focused on this issue.

4 The defendants rely on the judgment of Clarke J. (as he then was) in ACC v. Hanrahan [2014] IESC 40 which is one of a number of cases dealing with the costs of interlocutory injunctions in circumstances where a fair question has been found to arise on asserted but disputed facts which have not been determined at the interlocutory stage and which will be revisited at the substantive trial. Other cases in the same vein include AIB v Diamond [2011] IEHC 505; Tekenable Ltd v. Morrissey [2012] IEHC 391; and Glaxo Group Ltd v. Rowex Ltd [2015] IEHC 467. It remains to be determined whether the costs provisions of the 2015 Act will have any material impact on this line of authority. Although no argument was addressed by the parties to this issue, I have assumed that this will probably not be the case as the principle that costs should be awarded in respect of interlocutory applications save where it is not possible to “justly” make that adjudication was introduced in 2008 and the case...