White v Bar Council of Ireland

JudgeMr Justice Max Barrett
Judgment Date31 March 2017
Neutral Citation[2017] IEHC 200
Date03 April 2017
CourtHigh Court
Docket Number[2015 No. 582JR]
– and –



[2017] IEHC 200

Barrett J.

[2015 No. 582JR]


Professional Ethics & Regulation – Practice & Procedures – Award of costs – S. 78 of the Courts of Justice Act 1936 – Liability of unsuccessful defendant for the costs of successful defendant – "Order over"

Facts: The applicant after getting the desired relief from the Court, had now filed the present application seeking an "order over" under s. 78 of the Courts of Justice Act 1936. The applicant contended that the second respondent was liable to pay not only the applicant's cost but also the further costs that the applicant was obliged to pay to the first respondent. The second respondent objected to the making of an "order over" by the Court. The second respondent claimed that though the claims made by the applicant against it were linked to the claim made against the first respondent, yet both were different claims. The second respondent argued that the first respondent was an unnecessary party to the plaintiff's claim.

Mr. Justice Max Barrett held that the applicant was entitled to recoup from the second respondent, the further costs that the applicant was liable to pay to the first respondent in addition to the applicant's own costs. The Court held that it was clear that the applicant only came to know of his removal on the panel from the correspondence received from the first respondent, and thus, the first respondent was the necessary party. The Court held that it should exercise its discretion for making an order over for the costs. The Court held that it would make an order under s.78, once it was proved that the inclusion of the successful defendant was necessary notwithstanding the fact that such a defendant was later on dismissed from the action.

JUDGMENT of Mr Justice Max Barrett delivered on 31st March, 2017.
I. Overview

In its judgment of 8th December last, the court indicated that it would make the order for costs sought by (i) Mr White against the State parties, and (ii) the Bar Council against Mr White. Though an application for an "order over" was sought by Mr White in the initial costs application, the court indicated that it would appreciate fuller argument in this regard, in particular by reference to s.78 of the Courts of Justice Act 1936. A further hearing-date was set, further argument was heard, and this judgment has resulted.

II. Legal Background

(i) Statute.


Section 78 of the Courts of Justice Act 1936, which is concerned with the potential liability of an unsuccessful defendant for the costs of a successful defendant, provides as follows:

'Where, in a civil proceeding in any court, there are two or more defendants and the plaintiff succeeds against one or more of the defendants and fails against the others or other of the defendants, it shall be lawful for the Court, if having regard to all the circumstances it thinks proper so to do, to order that the defendant or defendants against whom the plaintiff has succeeded shall (in addition to the plaintiff's own costs) pay to the plaintiff by way of recoupment the costs which the plaintiff is liable to pay and pays to the defendant or defendants against whom he has failed.'


The form of s.78 suggests the form of the order to be made where a court is satisfied to exercise its discretion thereunder in a plaintiff versus two-defendant scenario, viz. an order in favour of the plaintiff against unsuccessful Defendant A, an order in favour of successful Defendant B against the plaintiff, and an order that unsuccessful Defendant A pay (in addition to the plaintiff's own costs) 'by way of recoupment the costs which the plaintiff is liable to pay and pays' to Defendant B.


Whether what is often referred to as an "order over", i.e. an order for the payment of costs directly by the unsuccessful defendant to the successful defendant, is properly available under s.78 is perhaps a moot point. Delany and McGrath in their learned text Civil Procedure in the Superior Courts (3rd ed.) assert, at para. 23–115, that '[A]n order under s.78 is often made by way of an order over'. However, it does not appear that such a form of order is what the section, at least expressly, contemplates; such an order would seem an order supplementary or complementary to the form of order expressly contemplated by s.78 in the particular circumstances that it is concerned with. Moreover, depending on the precise order made, and how the "order over" comes into play, such an order could see the risk of non-payment of Defendant B's costs shift, contrary to what s.78 provides as regards the circumstances with which it is concerned, from the plaintiff (who, in the form of order expressly contemplated by s.78 must pay those costs and then obtain recoupment) to Defendant B (who, pursuant to an "order over" must look directly to Defendant A). In practice, such a shifting of risk may not be desirable given the respective income, wealth and/or credit standing of the plaintiff and Defendant A. However, Ó'Dálaigh C.J.'s observation in Rice (considered below) that s.78 ' is an enabling provision; not a restrictive one' may suggest why the practice of "orders over" under s.78 appears, as Delany and McGrath suggest, to endure.


At the further hearing of the within application it became clear that what is being sought by Mr White at this time is (a) that the court exercise the discretion vested in it under s.78 of the Act of 1936 by ordering that, in the circumstances of this case, it is proper that Mr White recover from the Minister for Justice and Equality, in addition to his own costs, the further costs which Mr White shall be obliged to pay to the Bar Council of Ireland, such costs to be taxed in default of agreement, or (b) an "order over" to be made in respect of the Bar Council of Ireland's costs as against the Minister.

(ii) Case-Law.


Section78 has generated a limited line of case-law in the just over 80 years since it was enacted; the principal case-law of interest is considered below. The court has also been referred in this regard to Professor Delany's learned and helpful text The Courts Acts 1924–1997 (2d ed.), 159-161.

a. Owens v. Stringer [1938] Ir Jur Rep 64


This High Court decision is authority for the proposition that where at a late stage in proceedings (in that case on the morning of the trial of an action in personal injuries proceedings brought against the owners of two vehicles), one defendant admits liability and has judgment entered against him, he is liable, as an unsuccessful defendant to have an order for recoupment of costs made against him under s.78 on the basis that it has been necessary for the plaintiff to be prepared for trial against both defendants.

b. Parkinson v. Peelo (1939) 73 ILTR 218


In this case a landlord and her tenant were both occupiers of a wooden platform erected at the rear of the landlord's house at 13, Lower Leeson Street, Dublin 2. The platform was contiguous to that part of the house which the tenant occupied under lease from the landlord, but was not included in the demise. The tenant used the platform for various purposes, including the storage of coal. The landlord knew that the tenant used the platform, but did not know that he used it for storing coal. The platform was in an unsafe condition; this was known to the tenant, but not the landlord. The plaintiff, a coal-man delivering a bag of coal purchased by the tenant's employee on behalf of the tenant, fell through the platform and was injured.


In an action by the plaintiff against the landlord and her tenant, it was held that the plaintiff was the tenant's invitee and the landlord's licensee, and that therefore the tenant was liable to the plaintiff in damages; but the landlord, being unaware of the dangerous condition of the premises, was not. When it came to costs, O'Byrne J. ordered, pursuant to s.78, that the tenant, as unsuccessful defendant, should recoup to the plaintiff the costs of the landlord, as successful defendant. Parkinson is notable for the making of the order, rather than any observation made in the making of same.

c. Maher v. Great Northern Railway Co. (Ireland)and Warren (1942) 76 ILTR 189


The plaintiff sued Great Northern Railway Company (as bus-owner) and Mr Warren (as car-owner) pursuant to Lord Campbell's Act (an Act of the Westminster Parliament that allowed relatives of people killed in fatal accidents occasioned by the wrongdoing of others to recover damages), following a collision between a bus and a car. The matter went to trial and ended in the trial judge giving a direction in favour of Mr Warren, with the jury finding in favour of the Great Northern Railway Company.


Following successful appeal to the Supreme Court against the direction aforesaid, the Supreme Court ordered (i) a new trial concerning the liability of Mr Warren and (ii) that the costs of the first trial abide the result of the second. The jury at the second trial found against Mr Warren. The trial judge then ordered that Mr Warren (against whom the plaintiff had been successful) pay to the plaintiff by way of recoupment the costs which the plaintiff was liable to pay and paid to the Great Northern Railway Company (against which the plaintiff had been unsuccessful).


The plaintiff claimed that the said order for costs yielded an indemnity to the plaintiff for the general costs of the first action against both defendants. Mr Warren submitted that: (i) the Supreme Court had directed a new trial on the issues raised in his defence and to which Mr Warren had limited his defence; (ii) in the pre-action correspondence, Mr Warren had not alleged that the Great Northern Railway Company's negligence was solely responsible for the accident; and,...

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1 cases
  • White v The Bar Council of Ireland
    • Ireland
    • Court of Appeal (Ireland)
    • 23 February 2018
    ...circumstances of the present case, and these parties. 23 The trial judge at para. 35 of his judgment on the “order over” application ( [2017 IEHC 200]) stated: ‘It seems to the court having regard to the factual matrix to which reference was made by counsel for Mr White in his submissions ......

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