Thompson v Tennant

• Jurisdiction: Ireland
• Judge: Ms. Justice Nuala Butler
• Judgment Date: 17 December 2020
• Neutral Citation: [2020] IEHC 693
• Docket Number: [2019/7337/P]
• Court: High Court
• Date: 17 December 2020

BETWEEN

EMMA THOMPSON

AND

BEAUTIFUL MINDS CRECHE AND MONTESSORI LIMITED

PLAINTIFFS

AND

STEPHEN TENNANT

AND

PROMENTORIA (ARAN) LIMITED

DEFENDANT

[2020] IEHC 693

Nuala Butler

[2019/7337/P]

THE HIGH COURT

Interlocutory relief – Injunction – Costs – Plaintiffs seeking the costs of an interlocutory injunction granted against the defendants – Whether costs should follow the event

Facts: The plaintiffs, Ms Thompson, Beautiful Minds Creche and Montessori Ltd, applied to the High Court for the costs of an interlocutory injunction granted by the court against the defendants, Mr Tennant and Promontoria (Aran) Ltd, in a judgment delivered on 12th November, 2020 ([2020] IEHC 594). The plaintiffs sought an order for costs pursuant to O. 99, r. 3(1) of the Rules of the Superior Courts and s. 169(1) of the Legal Services Regulation Act 2015. The defendants looked for costs to be reserved to the trial of the action or to be made costs in the cause. The defendants’ submission also referred to a judgment of Keane J in Hafeez v CPM Consulting Ltd [2020] IEHC 583 in which a “calibrated” order for costs was made under which the successful defendant’s costs, but not those of the plaintiff, were made costs in the cause.

Held by Butler J that it was possible for the court to adjudicate justly upon the interlocutory application. Butler J held that the plaintiffs had succeeded in circumstances were the defendants contested both whether they had raised a fair question to be tried and where the balance of convenience lay. Thus, having regard to the principle that costs should follow the event unless there is compelling reason why the court should order otherwise, the court held that it would make an order for the plaintiff’s costs of the interlocutory application.

Butler J held that, mindful of the fact that there was ongoing litigation between the parties and of the fact that the questions which had been raised may not at trial be disposed of in the plaintiff’s favour, she was prepared to stay the execution of that order pending the trial of the action.

Relief granted.

JUDGMENT of Ms. Justice Nuala Butler delivered on the 17th day of December, 2020

1 This judgment relates to an application made by the plaintiffs for the costs of an interlocutory injunction granted by the court against the defendants in a judgment delivered on 12th November, 2020 (see [2020] IEHC 594). Both parties have filed helpful written submissions in which their respective positions are clearly set out. The plaintiffs are seeking an order for costs pursuant to O. 99, r. 3(1) of the Rules of the Superior Courts and s. 169(1) of the Legal Services Regulation Act, 2015. The defendants are looking for costs to be reserved to the trial of the action or to be made costs in the cause. The defendants' submission also refers to a recent judgment of Keane J. in Hafeez v CPM Consulting Limited [2020] IEHC 583 in which a “calibrated” order for costs was made under which the successful defendant's costs, but not those of the plaintiff, were made costs in the cause. The defendants have not however made any specific argument as to how that judgment should be applied to the circumstances of this case in which the defendants have not successfully resisted the application that was brought against them and, instead, the plaintiff has been granted the interlocutory relief sought.

Applicable rules and principles:

2 Traditionally the costs of an interlocutory injunction were reserved to the trial of the action where they would be adjudicated on by the trial judge in light of the substantive analysis undertaken by the court of the issues and the evidence in the case. That position was materially changed in 2008 by the introduction of the former O. 99, r. 1(4A) as part of a suite of new costs rules, which provided that on the determination of any interlocutory application the court should make an order for costs “save where it is not possible justly to adjudicate upon liability for costs on the basis of the interlocutory application”. The text of the former O. 99, r. 1(4A) is now reproduced as O. 99, r. 2(3). The effect of this change was to reverse the pre-existing position: instead of the costs of interlocutory applications generally being reserved to the trial of the action and only decided upon following the outcome of the interlocutory application in exceptional circumstances they are now as a general rule to be decided upon following the outcome of the interlocutory application and to be reserved to the trial of the action only exceptionally and where it is not possible for the court to justly adjudicate upon liability for costs at the interlocutory stage. Consequently, much of the case law since 2008 has focused on the circumstances in which it is not possible for a court justly to adjudicate on costs on the making, or refusal, of interlocutory orders.

3 A revised version of O. 99 was introduced to the Rules of the Superior Courts by S.I. 584/2019. This S.I. was introduced largely to give procedural effect to the provisions of Part 10 (Legal Costs) and Part 11 (Legal Costs in Civil Proceedings) of the Legal Services Regulation Act, 2015. For present purposes the relevant provisions of the 2015 Act are s. 168 which confers the formal power to award costs in civil proceedings on courts and s. 169 which is headed “Costs to Follow Event”. Significantly, s. 168(1) envisages the court exercising its power to award costs on the basis of an application made by a party to civil proceedings “at any stage in, and from time to time during, those proceedings”. This reinforced the principle to which expression had been given in the change to the rules in 2008 that a party may apply for, and a court may award, costs in respect of the various stages of legal proceedings at the time those stages have been undertaken and that it is not necessary to await the outcome of the entire proceedings before such an application can be made and adjudicated upon.

4 The plaintiffs place particular reliance on the principle enshrined in s. 169(1) of the 2015 Act to the effect that “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”. This gives statutory form to the principle that costs follow the event meaning that a party who has succeeded in an application should be awarded the costs of that application against a party who has opposed it and conversely, a party who successfully opposes an application should be awarded the costs of having done so. The text of s. 169(1) does not refer to interlocutory...