Smith v Cisco Systems Internetworking (Ireland) Ltd
| Jurisdiction | Ireland |
| Judge | Ms. Justice Máire Whelan |
| Judgment Date | 04 October 2023 |
| Neutral Citation | [2023] IECA 238 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Appeal Number: 2022/67 |
In the Matter of the Employment Equality Act, 1998
And in the Matter of the Equality Act 2004,
And in the Matter of the Workplace Relations Act, 2015
[2023] IECA 238
Whelan J.
Binchy J.
Allen J.
Appeal Number: 2022/67
THE COURT OF APPEAL
Practice & procedure – Costs – Allocation of costs – Earlier recusal application – Appeal against costs order
Facts: The parties were involved in litigation, and the appellant had brought a recusal application which was dismissed by the Court of Appeal in [2023] IECA 186. Costs were awarded to the respondent, and the appellant was invited to make submissions if he wished to contend for a different costs order. The matter now came before the Court for consideration.
Held by the Court that it was persuaded that the respondent had been entirely successful considering the terms of s 169 of the Legal Services Regulation Act, 2015 and costs should follow the event. Whilst the Court was mindful of the appellant’s impecuniosity, that per se did not raise a ground for deviating from the ordinary rule that costs would follow the event. However, the Court was minded to grant a stay on enforcing the costs order pending conclusion of the substantive litigation.
Binchy J and Allen J concurred in Whelan J’s judgment.
JUDGMENT of Ms. Justice Máire Whelan delivered on the 4th day of October 2023
. This judgment is directed towards the proper allocation of costs arising from the recusal application brought by the appellant/plaintiff in the within proceedings on the 16 th March 2023 the subject of judgments of this court [2023] IECA 186. The preliminary view of the court with regard to the issue of costs is specified at para. 102 of the judgment of Whelan J. with which Binchy and Allen JJ. concurred, which stated:-
“In light of O. 99 of the Rules of the Superior Courts and s. 169 of the Legal Services Regulation Act, 2015, as amended, the respondent is entitled to the costs of the failed recusal application — same to be ascertained in default of agreement.”
The appellant/plaintiff was invited to make submissions were he to contend for a different order in relation to costs. The parties have furnished written submissions on the issue.
. Mr. Smith has provided detailed submissions. It is necessary to observe at the outset that this application is confined solely and exclusively to a consideration of the proper allocation of costs in regard to the recusal application which was directed towards two members of the panel assigned to hear the appellant/plaintiff's appeal which was scheduled for the 16 th March 2023.
. Mr. Smith in his submissions argues in great detail in effect that the substantive judgments delivered by the court are erroneous on a wide set of bases and relying on various authorities. Various articles of Bunreacht na hÉireann and Orders and Rules of the Superior Courts are cited in the course of his contentions. However, in large measure these arguments are directed towards the substantive decisions and judgments and are not appropriate as issues to be raised unless in the context of an application by the appellant/plaintiff pursuant to Art. 34 of the Constitution to seek leave to appeal to the Supreme Court against the decision of this court. Therefore it is not appropriate to engage with the legal arguments which are detailed in very extensive submissions which are directed towards the merits of the judgments delivered herein [2023] IECA 186.
. The key arguments directed towards the issue of costs on the part of the appellant/plaintiff include:-
(a) that since the court and the registrar had advance knowledge of the intended recusal request and the appellant/plaintiff was complying with the confidentiality clause of the Judicial Council Act, 2019 “following the Court's refusal to facilitate my relist request dated 02-03-2023”, the appellant/plaintiff submits that “it is unfair and oppressive to penalise me with Costs pursuant to s. 169 of the LSRA having complied with the State's said confidentiality clause in the Judicial Council Act 2019”.
. Further it is contended that the respondent/defendant “was only served my email thread in paragraph 6(b) based on the Order of Whelan J. who suspended the confidentiality clause protecting Allen J. and Binchy J. indefinitely, whereas both said panel members failed to raise any objection to the removal of their confidentiality rights protection as per their disclosures in their belated 27-page and 5-page prejudiced individual Judgments.”
. The appellant/plaintiff further contends:-
“Both Allen and Binchy JJ. manipulated, selected and concealed the facts about the fair procedures issues submitted in my subsequent two Complaints against the aforesaid Judges lodged with info@ihrec.ie postmarked ‘27 th June 2023 at 21:51’ and ‘28 th June 2023 at 12:50’”.
. Fourthly, it is contended that this court should apply “… the same rule that the said Circuit Court judge applied 05-Mar-2020 pursuant to s. 169(2) of the LSRA. The Court of Appeal should deny Costs to the Defendant …”. The appellant/plaintiff asserts that the judgment of Whelan J. in [2023] IECA 186:-
“at [14] omitted the facts in breach of fairness and I submitted on 16-Mar-2023 that [2022] IESCDET 107 struck out the Costs Order dated 15-Jun-2022 that Binchy J. issued in error having disproportionately failed to carry out the said Legal Test of my means pursuant to s. 169(2) of the LRSA (sic) and that The Court of Appeal subjected me to disproportionate costs via simultaneous cases in the period 24—Jun-2022 to 03-Jan-2023 until I missed the four months window within which to seek a further remedy at the European Court of Human Rights in relation to [2022] IESCDET 107 that apparently endorsed the Decision of the Circuit Court Judge dated 05-Mar-2020 pursuant to s. 169(2) of the LSRA.”
The respondent/defendant, Cisco contend that it is entitled to its reasonable legal costs, particularly by reason that it has been “entirely successful”.
. The principles governing the making of costs orders including interlocutory applications has been the subject of a good deal of judicial consideration. However, the correct starting point must in all cases be sections 168 and in particular s. 169 of the Legal Services Regulation Act, 2015 (LSRA).
. Section 168(1) which came into operation on the 7 th October, 2019 provides:-
“Subject to the provisions of this Part, a court may, on application by a party to civil proceedings, at any stage in, and from time to time during, those proceedings —
(a) order that a party to the proceedings pay the costs of or incidental to the proceedings of one or more other parties to the proceedings …”
. Section 168(2) provides:-
“Without prejudice to subsection (1), the order may include an order that a party shall pay —
(a) a portion of another party's costs,
(b) costs from or until a specified date …
(c) costs relating to one or more particular steps in the proceedings,
(d) where a party is partially successful in the proceedings, costs relating to the successful element or elements of the proceedings, and
(e) interest on costs from or until a specified date, including a date before the judgment.”
. Section 169(1) provides:-
“A party who is entirely successful in civil proceedings is entitled to an award of costs against a party who is not successful in those proceedings, unless the court orders otherwise, having regard to the particular nature and circumstances of the case, and the conduct of the proceedings by the parties, including —
(a) conduct before and during the proceedings,
(b) whether it was reasonable for a party to raise, pursue or contest one or more issues in the proceedings,
(c) the manner in which the parties conducted all or any part of their cases,
(d) whether a successful party exaggerated his or her claim,
(e) whether a party made a payment into court and the date of that payment,
(f) whether a party made an offer to settle the matter the subject of the proceedings, and if so, the date, terms and circumstances of that offer, and
(g) where the parties were invited by the court to settle the claim (whether by mediation or otherwise) and the court considers that one or more than one of the parties was or were unreasonable in refusing to engage in the settlement discussions or in mediation.”
. Order 99, rr. 2 and 3 of the Rules of the Superior Courts are clearly relevant also in respect of the interlocutory application seeking the recusal and the issue of costs. Order 99, r. 2 provides:-
“Subject to the provisions of statute (including sections 168 and 19 of the 2015 Act) and except as otherwise provided by these Rules:
(1) The costs of and incidental to every proceeding in the Superior Court shall be in the discretion of those Courts respectively.
(2) No party shall be entitled to recover any costs of or incidental to any proceeding from any other party to such proceeding except under an order or as provided by these Rules.
(3) The High Court, the Court of Appeal or the Supreme Court, upon determining any interlocutory application, shall make an award of costs save where it is not possible justly to adjudicate upon liability for costs on the basis of the interlocutory application.
(4) …
(5) An order may require the payment of an amount in respect of costs forthwith, notwithstanding that the proceedings have not been concluded.
3(1) The High Court, in considering the award of the costs of any action or step in any proceedings, and the Supreme Court and Court of Appeal in considering the awarding of the costs of any appeal or step in any appeal, in respect...
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