Start Mortgages DAC v Kavanagh

• Jurisdiction: Ireland
• Judge: Mr. Justice Garrett Simons
• Judgment Date: 22 March 2023
• Neutral Citation: [2023] IEHC 140
• Court: High Court
• Docket Number: 2013 No. 353 SP

Between

Start Mortgages DAC

Plaintiff

and

Simon Kavanagh

Deirdre Kavanagh

Defendants

[2023] IEHC 140

2013 No. 353 SP

THE HIGH COURT

Appearances

Rudi Neuman Shanahan for the plaintiff instructed by Lavelle Partners LLP

The first named defendant appeared in person

JUDGMENT of Mr. Justice Garrett Simons delivered on 22 March 2023

INTRODUCTION

1 This supplemental judgment addresses the allocation of the costs of an application to set aside a final, unappealed judgment and order of the High Court (“ the set aside application”). The set aside application was refused for the reasons stated in a reserved judgment delivered on 30 January 2023, Start Mortgages DAC v. Kavanagh [2023] IEHC 37 (“ the principal judgment”).

2 The provisional view expressed in the principal judgment in respect of costs had been that the plaintiff, having been entirely successful in resisting the application to set aside the judgment and order, would be entitled to the costs of the motion as against the moving party, i.e. the first named defendant. The parties were given liberty to file written submissions on the question of costs.

3 The moving party filed written submissions dated 11 February 2023 and these were replied to by the plaintiff on 1 March 2023. I have carefully considered the content of both sets of submissions in preparing this ruling on costs.

DISCUSSION AND DECISION

4 A distinction is drawn, for costs purposes, between interlocutory applications and the final determination of the proceedings. The costs of interlocutory applications are regulated, primarily, by the recast Order 99 of the Rules of the Superior Courts. Order 99, rule 2 provides that the High 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. The implication being that, in certain circumstances, it will be necessary to defer making a decision on the allocation of the costs of an interlocutory application until such time as the ultimate outcome of the proceedings is known. (See, generally, ACC Bank plc v. Hanrahan [2014] IESC 40, [2014] 1 I.R. 1 at paragraphs 8 and 9 of the reported judgment).

5 Order 99, rule 3 provides that the High Court, in considering the awarding of the costs of any action or step in any proceedings, shall have regard to the matters set out in Section 169(1) of the Legal Services Regulation Act 2015, where applicable.

6 Where proceedings have been determined, the costs are regulated, primarily, by Section 169 of the Legal Services Regulation Act 2015. The default position is that the party who is “ entirely successful” in civil proceedings is entitled to an award of costs against the unsuccessful party. The court enjoys a broad discretion and may depart from the default position. If the court does depart from the default position, it is under a statutory obligation to give reasons for that order.

7 This judgment is concerned with the costs of an application to set aside a final, unappealed judgment and order of the High Court. Although the application was brought by way of a notice of motion, it is not properly characterised as an interlocutory application. This is because these proceedings have long since been determined. The judgment and order were entered on 18 July 2016 and have never been appealed. The substantive merits of the proceedings have thus been finally determined. There is no question, therefore, of deferring the allocation of the costs of the set aside application pending some other event in the proceedings.

8 The default position is that the plaintiff, having been entirely successful in resisting the application to...