Thomas Condron v Galway Holding Company Ltd and Danmar Construction Ltd and Stephen Treacy and Maureen Treacy
| Jurisdiction | Ireland |
| Judge | Ms Justice Whelan,Mr Justice Maurice Collins |
| Judgment Date | 02 March 2022 |
| Neutral Citation | [2022] IECA 50 |
| Docket Number | Appeal Number: 2018/305 |
| Year | 2022 |
| Court | Court of Appeal (Ireland) |
[2022] IECA 50
Whelan J.
Collins J.
Pilkington J.
Appeal Number: 2018/305
THE COURT OF APPEAL
CIVIL
Costs – Jurisdiction– Courts Act 1981 s. 17(1) – Respondent cross-appealing against the costs judgment delivered by the High Court – Whether the trial judge erred in law and in fact in finding that the appropriate jurisdiction in which to commence the proceedings was the Circuit Court
Facts: For the reasons set out in the High Court’s judgment of 17 April 2018, and upheld on appeal by the Court of Appeal ([2021] IECA 216), the trial judge determined that the appellants, Galway Holding Company Ltd, Danmar Construction Ltd, Mr Treacy and Ms Treacy, had committed an act of trespass in constructing a footpath on the grass verge on the southern side of Seamount Road, Malahide, Co. Dublin, along the length of the road-facing boundary of the property of the respondent, Mr Condron. The respondent obtained orders that the appellants restore the said grass verge to reverse any changes effected to same and pay the respondent €10,000 by way of damages for trespass. The respondent sought an order for costs. The appellants contended that, if entitled to costs, the respondent was entitled only to the costs appropriate to the level of damages awarded which was well within the jurisdiction of the Circuit Court where the proceedings ought to have been initiated and maintained. The respondent cross-appealed against the costs judgment delivered on 19 June 2018 by the High Court (McDermott J) which directed that the appellants pay the respondent’s costs at the Circuit Court scale with a certificate for senior counsel pursuant to s. 17(1) of the Courts Act 1981, as amended. In the notice of cross-appeal, the respondent contended that the trial judge erred in law and in fact in finding that the appropriate jurisdiction in which to commence the proceedings was the Circuit Court.
Held by the Court of Appeal (Whelan J) that, as the trial judge observed: “It is clear in the light of [Permanent TSB plc v Langan [2017] IESC 71] that the Circuit Court was the appropriate jurisdiction in which to initiate these proceedings but the controversy surrounding the Circuit Court jurisdiction was a live one and it is difficult to criticise the plaintiff for initiating these proceedings in the High Court in the light of that controversy.” Whelan J held that this view speaks to the Supreme Court decision. However, Whelan J noted that that judgment was only delivered after the conclusion of the 11-day hearing of the action and over 20 months after the institution of these proceedings. Whelan J held that it was reasonable for a litigant in the position of the respondent and his legal advisers at the date of institution of these proceedings to act on the basis that there was a real and substantial risk that the Circuit Court lacked jurisdiction; that risk was reinforced by the tenor of the Langan judgment in the Court of Appeal. In circumstances where the appellants never raised any objection to the respondent’s invocation of the jurisdiction of the High Court or suggested that the Circuit Court was the appropriate jurisdiction in which the action heard and determined, and the appellants expressly invoked the jurisdiction of the High Court to advance a counter-claim that could not have been pursued in the Circuit Court, Whelan J was satisfied that it would be fundamentally unfair to permit the appellants to rely on s. 17(1) in order to limit their costs liability to the respondent and they were estopped by their conduct from doing so. Whelan J held that in light of their active acquiescence in the case proceeding in the High Court coupled with their conduct otherwise, the appellants were estopped from relying on s. 17(1). Whelan J set aside the order of the trial judge that “the defendants do pay the plaintiff’s costs at the Circuit Court scale with a certificate for senior counsel” and in lieu thereof ordered that the appellants pay the respondent’s High Court costs when ascertained.
Whelan J held that as the respondent was entirely successful in the cross-appeal, her preliminary view was that he was entitled to an order for costs as against the appellants.
Cross-appeal allowed.
Judgment of Mr Justice Maurice Collins delivered on 2 March 2022
I agree with the judgment of Whelan J and with the order she proposes.
I do so in the very particular circumstances presented here.
The High Court Judge thought it “ difficult to criticise the plaintiff for initiating these proceedings in the High Court” given the uncertainty as to whether the Circuit Court had jurisdiction. I share that view. In her judgment, Whelan J has set out in detail how this issue arose and how it was not until the Supreme Court's decision in Permanent TSB plc v Langan [2017] IESC 71, [2018] 1 IR 375 that that uncertainty was resolved. As she explains, by the time of the Supreme Court's decision, the High Court hearing in this case had concluded. In the circumstances, it would seem harsh indeed to assess the application of section 17(1) of the Courts Act 1981 (as amended) with the 20:20 hindsight that Langan permits.
It is also relevant, in my view, that the Defendants appear never to have objected to the Plaintiff proceeding in the High Court. They did not bring an application to remit the proceedings to the Circuit Court. It may be that, in the ordinary way, that will be a neutral factor and, as Whelan J suggests, that appears to have been the view taken by Dunne J in Meath County Council v Rooney [2009] IEHC 564. But even if that is so, the fact is that it was at all times open to the Defendants here to assert that the Circuit Court was the appropriate jurisdiction in which to proceed and they could have offered to consent to that court's jurisdiction to deal with the proceedings in order to allay any Langan-related concerns. They did not do so and remained silent and, in the circumstances, their silence might well be characterised as acquiescence in the Plaintiff's decision to proceed in the High Court.
In fact, there was significantly more than acquiescence by silence. As Whelan J explains, the Defendants in fact brought a counterclaim which included a claim for damages in an amount in excess of the jurisdiction of the Circuit Court. That is a particularly significant factor in my view and involved a clear representation by the Defendants that they accepted and adopted the jurisdiction of the High Court.
The decision of the Supreme Court in Murphy v Grealish [2009] 3 IR 366, and the authorities referred to in it, clearly establish the principle that a party may be estopped by their conduct from relying on an otherwise applicable statutory provision – in that case, the provisions of the Statute of Limitations. In the particular circumstances here, I consider that the Defendants are estopped by their conduct from relying on section 17(1) against the Plaintiff and I agree with Whelan J that it would unconscionable to permit them to do so.
Whelan and Pilkington JJ have authorised me to record their agreement with this judgment.
Judgment of Ms Justice Whelan delivered on the 2 nd day of March 2022
. This judgment is directed towards the respondent's cross-appeal against the costs judgment delivered on 19 June 2018 by the High Court (McDermott J.) which directed that the appellants pay the respondent's costs at the Circuit Court scale with a certificate for senior counsel pursuant to s. 17(1) of the Courts Act 1981 (“the 1981 Act”), as amended. The trial judge separately refused the appellants' application for a differential costs order pursuant to s. 17(5) of the 1981 Act.
. The said costs order arose in a context where, for the reasons set out in the High Court's judgment of 17 April 2018 (and upheld on appeal by this court; see, Condron v. Galway Holding Co. Ltd. [2021] IECA 216), the trial judge determined that the appellants had committed an act of trespass in constructing a footpath on the grass verge on the southern side of Seamount Road, Malahide, Co. Dublin, along the length of the road-facing boundary of the respondent's property. The respondent obtained orders that the appellants restore the said grass verge to reverse any changes effected to same and pay the respondent €10,000 by way of damages for trespass.
. The respondent sought an order for costs. The appellants contended that, if entitled to costs, the respondent was entitled only to the costs appropriate to the level of damages awarded which was well within the jurisdiction of the Circuit Court where the proceedings ought to have been initiated and maintained. The appellants also sought an order from the High Court awarding them an amount equal to the difference in the costs that the appellants would have incurred if the proceedings herein had been brought in the Circuit Court, and the costs that were incurred in defending the proceedings in the High Court, pursuant to s. 17(5)(a) of the 1981 Act. The latter application was refused by the High Court order of 26 June 2018.
. In the notice of cross-appeal, the respondent contends that the trial judge erred in law and in fact in finding that the appropriate jurisdiction in which to commence the within proceedings was the Circuit Court.
. As outlined in the trial judge's cost judgment, the appellants relied primarily on s. 17(1) of the 1981 Act in asserting that the respondent was only entitled to his costs as measured on the Circuit Court scale. They submitted that, on the basis of Meath County Council v. Rooney [2009] IEHC 564, the trial judge had no discretion other than to...
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