Stephanie Moloney v Cashel Taverns Ltd (in Voluntary Liquidation)
| Jurisdiction | Ireland |
| Judge | Mr. Justice Heslin |
| Judgment Date | 11 February 2021 |
| Neutral Citation | [2021] IEHC 99 |
| Docket Number | [2013 / 1925 P] |
| Court | High Court |
| Date | 11 February 2021 |
and
[2021] IEHC 99
[2013 / 1925 P]
THE HIGH COURT
Costs – Liability – Insurance – Second defendant seeking costs – Whether costs should follow the event
Facts: The High Court (Heslin J), on 10 December 2020, decided that the relevant insurance company, being the second defendant, Liberty Insurance DAC, was entitled to repudiate liability in respect of the relevant insurance policy. Heslin J was satisfied that the second defendant had validly repudiated liability and that it had undoubtedly discharged the burden of proof in that regard; thus, no moneys were payable on foot of the relevant policy of insurance and the plaintiff, Ms Moloney, had no entitlement to recover from the second defendant. Heslin J was obliged to dismiss the plaintiff’s claim against the second defendant. Written submissions were provided on behalf of the plaintiff, in circumstances where the parties did not reach agreement on the issue of costs and where the second defendant submitted that "as the second named defendant has been “entirely successful” in its defence of this claim, in accordance with the provisions of the Legal Services Regulation Act, 2015, costs should follow the event and we are instructed to seek an order for costs to include reserved costs, the costs of making discovery and of legal submissions".
Held by Heslin J that the second defendant had been entirely successful, the event being the dismissal of the plaintiff's case. Having taken all relevant factors into account and having had regard to the legal principles and legislative provisions, Heslin J was satisfied that there was no basis which would justify a departure from the general rule.
Heslin J held that the appropriate order to make was for an order for costs in favour of the second defendant, to include reserved costs, the costs of making discovery and of legal submissions, with such costs to be adjudicated in default of agreement, in the normal way.
Costs awarded to second defendant.
Ruling of Mr. Justice Heslin delivered on the 11th day of February 2021
This short ruling should be read in conjunction with the judgement given by me, on 10 December 2020.
For the reasons set out in the said judgment, I decided that the relevant insurance company, being the second named Defendant, was entitled to repudiate liability in respect of the relevant insurance policy. I was satisfied that the Second Named Defendant had validly repudiated liability and that it had undoubtedly discharged the burden of proof in that regard. Thus, no moneys were, or are, payable on foot of the relevant policy of insurance and the Plaintiff has no entitlement to recover from the Second Named Defendant. I was obliged to dismiss the Plaintiff's claim against the Second Named Defendant for the reasons detailed.
I have carefully considered the written submissions which have since been provided on behalf of the Plaintiff, in circumstances where the parties did not reach agreement on the issue of costs and where the Second Named Defendant submits that “…as the second named defendant has been “entirely successful” in its defence of this claim, in accordance with the provisions of the Legal Services Regulation Act, 2015, costs should follow the event and we are instructed to seek an order for costs to include reserved costs, the costs of making discovery and of legal submissions.”
The general rule is, of course, that “costs follow the event” and I am satisfied that the burden rests on the Plaintiff, being the unsuccessful party, to demonstrate why the general rule should not be followed in this case. As the Supreme Court (McKechnie J.) made clear in Godsil v Ireland [2015] IESC 103, (at para. 23):
“23. The general rule is that costs follow the event unless the court otherwise orders: O. 99, r. 1(3) and (4) of the Rules of the Superior Courts (“RSC”). This applies to both the original action and to appeals to this Court ( Grimes v. Punchestown Developments Co. Ltd & Anor [2002] 4 I.R. 515 (“ Grimes”) and S.P.U.C. v. Coogan & Ors (No.2) [1990] 1 I.R. 273). Although acknowledged as being discretionary, a court which is minded to dis-apply this rule can only do so on a reasoned basis, clearly explained, and one rationally connected to the facts of the case to include the conduct of the participants: in effect, the discretion so vested is not at large but must be exercised judicially ( Dunne v. The Minister for the Environment, Heritage and Local Government & Ors [2008] 2 I.R. 775 at 783–784) (“ Dunne”). The “overarching test” in this regard, as described by Laffoy J. in Fyffes plc v. DCC plc & Ors [2009] 2 I.R. 417 (“ Fyffes”) at p. 679, is justice related. It is only when justice demands, should the general rule be departed from. On all occasions when such is asserted the onus is on the party who so claims.”
Later in the same judgment, Mr Justice McKechnie stated (at para.52):
“Costs Follow the Event:
52. The overriding start point on any question of contested costs is that the general principle applies that namely, costs follow the event. All of the other rules, practises and approaches are supplementary to this principle and are designed to further its application or to meet situations where such application is difficult, complex or indeed even impossible.
In Veolia Water UK plc v Fingal County Council [2006] IEHC 240, Clarke J (as he then was) stated (at 2.5):
“…the overriding starting position should remain that costs should follow the event. Parties who are required to bring a case to court in order to secure their rights are, prima facie, entitled to the reasonable costs of maintaining the proceedings. Parties who successfully defend proceedings are, again prima facie, entitled to the costs to which they have been put in defending what, at the end of the day, the court has found to be unmeritorious proceedings. Similarly it seems to me that the courts generally (and the Commercial Court in particular) should be prepared to deal with the costs of contested interlocutory applications on the basis of an analysis of whether there were proper grounds for bringing, on the one hand, or resisting, on the other hand, the relevant application.”
It is fair to say that the Second Named Defendant has been entirely successful, the event being the dismissal of the Plaintiff's case.
Section 169 (1) of the Legal Services Regulation Act, 2015 (“the 2015 Act”) provides as follows:-
“169(1) 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
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