The Health Service Executive v Roftek Ltd
| Jurisdiction | Ireland |
| Judge | Mr. Justice Mark Heslin |
| Judgment Date | 31 January 2023 |
| Neutral Citation | [2023] IEHC 42 |
| Court | High Court |
| Docket Number | Record No. [2020 8416 P] |
[2023] IEHC 42
Record No. [2020 8416 P]
THE HIGH COURT
Costs ruling of Mr. Justice Mark Heslin delivered on the 31st day of January 2023
. This short ruling in relation to the question of costs must be read in conjunction with the judgment of this court delivered on 15 December 2022 (“the judgment”). Written submissions were furnished by both parties and I have carefully considered same.
. For the reasons set out in the judgment, I refused the defendant's application. Thus, it is entirely fair to say that the plaintiff/respondent was “ entirely successful”. The significance of this is clear from s. 169(1) of the Legal Services Regulation Act 2015 Act (“the 2015 Act”) which states:
“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.” (Emphasis added).
. Order 99 makes explicit reference to the 2015 Act in that rules 2 and 3 provides:
“2. Subject to the provisions of statute (including sections 168 and 169 of the 2015 Act) and except as otherwise provided by these Rules:
(1) The costs of and incidental to every proceeding in the Superior Courts 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) An award of costs shall include any sum payable by the party in favour of whom such an award is made by way of value added tax on such costs, where and only where such party establishes that such sum is not otherwise recoverable.
(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 awarding 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 of a claim or counterclaim, shall have regard to the matters set out in section 169(1) of the 2015 Act, where applicable.
(2) For the purposes of section 169(1)(f) of the 2015 Act, an offer to settle includes any offer in writing made without prejudice save as to the issue of costs.”
. Being the entirely successful party, the plaintiff/respondent enjoys a presumptive right, under statute, to a costs order and they are entitled to an award of costs unless there are particular circumstances (which the Court must identify) which mean that the interests of justice require otherwise. In other words, although the court enjoys a discretion with regard to costs, there are limitations with regard to the exercise of that discretion. It could not be properly exercised unfairly, such as would be the case if this court's discretion was exercised in a manner inconsistent with the 2015 Act or unfairly.
. Having carefully considered what is urged on behalf of the defendant/applicant, I am satisfied that the facts and circumstances are wholly insufficient to justify a departure from the ‘general rule’ that ‘costs’ should ‘follow the event’ (and it is fair to say that s.169 of the 2015 Act gives statutory expression to the ‘general rule’).
. I am satisfied that, taking full account of the particular nature and circumstances of the case and the conduct of the proceedings (including but not limited to the matters specified in subsections (a)-(g) of s.169(1) of the 2015 Act) that it would be an entirely unfair and inappropriate exercise of this Court's discretion, and would be to create an injustice, if the entirely successful party were not to be awarded the costs of the present application.
. As the judgment made clear (see paras. 16 to 19), the hearing proceeded on the basis that the plaintiff accepted that the plenary summons incorrectly specified Sections 3, 4 or 5 of the ‘Brussels Recast’ (instead of Article 7) but contended that there was no prejudice to the defendant by this error and no basis on which this Court ought to refuse jurisdiction of the claim. In that, the plaintiff was correct.
. The plaintiff relied on certain authorities (see Croke v. Waterford Crystal Ltd. [2005] 2 IR 383; Palamos Properties Ltd. v. Brooks [1996] 3 IR; Cropper v. Smyth (1884) 26 Ch. D. 700; Abama & Ors. v. Gama Construction Ireland Ltd. [2011] IEHC 308; Abama & Ors. v. Gama Construction (Ireland) [2015] IECA 179) and on certain Rules of the Superior Courts (“RSC”) (in particular O. 28, r. 1 RSC and O. 19, r. 26 RSC).
. The hearing proceeded on the basis of the contention by the defendant/applicant that the Court should not follow the approach identified in Abama. Rather, argued the defendant/respondent, there had been “ cumulative errors” of the type explained in Castlelyons Enterprises Ltd. v. Eukor Car Carriers Inc. & Anor [2016] IEHC 537.
. I rejected the argument by the defendant/applicant that there had...
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