University College Cork – National University of Ireland v The Electricity Supply Board

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 23 July 2021
• Neutral Citation: [2021] IESC 47
• Court: Supreme Court
• Docket Number: [Appeal No: 78/18]

Between/

University College Cork – National University of Ireland

Plaintiff/Appellant

and

The Electricity Supply Board

Defendant/Respondent

[2021] IESC 47

Clarke C.J.

O'Donnell J.

MacMenamin J.

Dunne J.

Charleton J.

[Appeal No: 78/18]

THE SUPREME COURT

Costs – Negligence – Contributory negligence – Appellant seeking costs – Whether costs should follow the event

Facts: The appellant, University College Cork (UCC), had succeeded in the High Court in establishing negligence against the respondent, the Electricity Supply Board (the ESB), arising out of flooding in Cork city in 2009 but had also been found guilty in contributory negligence which the trial judge had assessed at 40%. The trial judge awarded UCC 60% of the costs of what was a very lengthy trial. However, the Court of Appeal reversed the decision of the High Court and awarded all costs against UCC. The Court of Appeal concluded that the ESB was not guilty of negligence but the majority in the Supreme Court came to a different view. In respect of the cross appeal, the ESB succeeded in maintaining the finding of the High Court to the effect that there was some contributory negligence and failed in the argument that the ESB might be entitled to rely on the negligence which the trial judge found as against UCC’s professional advisors. UCC sought an order directing the ESB to pay the full costs of the appeals in the Supreme Court and in the Court of Appeal as well as the full costs of the proceedings in the High Court. In the event that the Supreme Court was not prepared to award UCC full costs for all three Courts, UCC submitted that any disallowances should be minimal in order to reflect the success of its appeal in the Supreme Court. The ESB submitted that each party should bear its own costs in respect of both the appeal to the Supreme Court and that to the Court of Appeal. In respect of the proceedings in the High Court, the ESB argued that, should it be found liable for any High Court costs, the original decision of the trial judge on costs (from 4 December, 2015) should stand. In the alternative the ESB raised the possibility of the costs in the original High Court proceedings being remitted to that court to consider the proper approach in light of the outcome of the issues remitted back by the Supreme Court as a result of both earlier judgments in this matter. One particular issue was raised by the ESB which suggested that, because these proceedings were in the nature of a test case, and where, to a greater or lesser extent, it might be said that the test for liability of dam operators was refined or evolved, no order for costs should be made against the ESB in respect of the appeal to the Supreme Court.

Held by Clarke CJ that the fact that there may be a justification for departing from the ordinary rule of costs following the event where a public body successfully defends proceedings, but in so doing gains the benefit of a clarification of an area of the law important to it, provides no basis for the opposite proposition that an essentially private plaintiff should have to forego their costs simply because an unsuccessful public body has had the law clarified. It did not seem to the Court that the argument put forward in that regard by the ESB provided any basis for departing from what would otherwise be the appropriate order in respect of costs. The Court did not consider it appropriate to make any deduction from the costs to which UCC ought to ordinarily be entitled, as the winner, in respect of the costs of the appeal to the Court. The Court was of the view that both parties were partly successful on the cross appeal. The Court was, therefore, of the view that the appropriate order to make in those circumstances was that there should be no order as to costs in respect of the cross appeal. It seemed to the Court that the appropriate order to make in respect of the costs before the Court of Appeal was the same as the order made in respect of the costs of the appeal to the Supreme Court, being that UCC should recover all of their costs.

Clarke CJ concluded that the appropriate way to deal with the costs incurred in the trial before the High Court was to reserve those costs back to the High Court to be considered in light of the final decision reached by that Court arising from the various matters which had been remitted back both by the judgment in respect of the appeal and by the judgment in respect of the cross appeal.

Costs of the appeal awarded to the appellant. No order as to the costs of the cross appeal. Costs of the Court of Appeal awarded to the appellant. Costs in the High Court reserved.

Ruling of the Court delivered by Mr. Justice Clarke, Chief Justice, on 23 ^rd July, 2021.

1. Introduction

1.1 There have already been two substantive judgments delivered by this Court in these proceedings in relation both to an appeal brought by UCC (see, University College Cork v. Electricity Supply Board [2020] IESC 38) and a cross appeal brought by the ESB (see, University College Cork v. Electricity Supply Board [2021] IESC 21). This ruling should be read in conjunction with both of those judgments. Defined terms are used in this ruling in the same way as in those judgments.

1.2 The only issue remaining between the parties arising out of both the appeal and the cross appeal is the question of costs in respect of both the appeal to this Court and in relation to the proceedings to date in the lower courts. A hearing in that regard took place on June 17, 2021 in circumstances where both sides had filed extensive submissions as to the approach to costs for which they respectively argued.

1.3 As noted in both the judgment on the appeal and the judgment on the cross appeal, UCC had succeeded in the High Court in establishing negligence against the ESB arising out of flooding in Cork city in 2009 but had also been found guilty in contributory negligence which the trial judge had assessed at 40%. The trial judge awarded UCC 60% of the costs of what was a very lengthy trial.

1.4 However, the Court of Appeal reversed the decision of the High Court and awarded all costs against UCC. Thus, the costs of all three courts now need to be considered by this Court in light of the judgments in respect of the appeal and the cross appeal. It is first appropriate to set out the position of the parties.

1.5 UCC seeks an order directing the ESB to pay the full costs of the appeals in this Court and in the Court of Appeal as well as the full costs of the proceedings in the High Court. In the event that this Court is not prepared to award UCC full costs for all three Courts, UCC submits that any disallowances should be minimal in order to reflect the success of its appeal in this Court. For its part, the ESB submits that each party should bear its own costs in respect of both the appeal to this Court and that to the Court of Appeal. In respect of the proceedings in the High Court, the ESB argues that, should it be found liable for any High Court costs, the original decision of the trial judge on costs (from 4 December, 2015) should stand. In the alternative the ESB raised the possibility of the costs in the original High Court proceedings being remitted to that court to consider the proper approach in light of the outcome of the issues remitted back by this Court as a result of both earlier judgments in this matter.

1.6 Many of the issues raised fall within the established case law of this Court concerning costs, but one particular issue was raised by the ESB which suggested that, because these proceedings were in the nature of a test case, and where, to a greater or lesser extent, it might be said that the test for liability of dam operators was refined or evolved, no order for costs should be made against the ESB in respect of the appeal to this Court. This was argued to be an appropriate approach having regard, by analogy it was said, to the position sometimes adopted in respect of unsuccessful plaintiffs in such test cases or cases involving matters of particular public importance. It is appropriate to deal with that issues first.

2. A Test Case?

2.1 There certainly have been some cases where this Court has recognised that a departure from the norm of costs following the event may be appropriate where it can be proper to describe a case as being in the nature of a test case (see, among other cases, F. v. Ireland and the Attorney General (Unreported, Supreme Court, Hamilton C.J., 27 ^th July, 1995), Grimes v. Punchestown Developments Company Ltd [2002] IESC 79, 4 I.R. 515, Curtin v. Clerk of Dáil Éireann and Others [2006] IESC 27, and Dunne v Min for the Environment and Others [2007] IESC 60, [2008] 2...