Emma McKeown v Ann Crosby and Mary Vocella
Costs ruling of Mr. Justice Noonan delivered on the 11th of May 2021:
The principal judgement was delivered on the 11th of August 2020, the Appellants, being the Defendants, were successful and the damages awarded by the High Court of €76,000 were reduced to €41,000 (our article on the Judgment is available here.). Following the hearing, the parties were given the liberty to make written submissions on the issues of costs. The Defendants sought the following costs order:
- An Order rewarding the Defendants the costs of the Appeal.
- An Order awarding the Plaintiff Circuit Court costs in respect of the hearing before the High Court without the benefit of a Certificate for Senior Counsel.
- An Order directing the Plaintiff to pay to the Defendants any additional costs incurred by them in defending the case in the High Court rather than the Circuit Court, i.e. a Cost Differential Order.
It was noted as follows:
- The Personal Injuries Summons issued in October 2018.
- In November 2018, the Defendant’s Solicitors entered an Appearance, served a Notice for Particulars and a costs differential letter.
- In January 2019 the Defendants delivered their Defence admitting liability.
- The Defendants served a Tender in the sum of €30,182.00 plus Circuit Court costs in May 2019.
- The Trial took place at Dundalk High Court in December 2019.
- On the 18th of December 2019, the Defendant’s Solicitors sent a calderbank letter to the Plaintiff’s Solicitors marked without prejudice save as to costs, indicating that they had been instructed to Appeal and to avoid further costs they were prepared to offer the sum of €47,1056 plus Circuit Court costs without a certificate for Senior Counsel. This offer, was subject to the sum of €4,920 being offset against the Plaintiff’s costs which the Defendant’s Solicitors claimed represented the additional costs incurred by their clients in defending the matter in the High Court. The Plaintiff’s Solicitors replied refusing the Defendants’ offer and advised that they would accept the sum of €69,000 plus High Court costs.
- In February 2020, the Plaintiff’s Solicitors wrote repeating the same offer and the Defendant’s Solicitors replied repeating their offer.
Neither offer was accepted and accordingly the Appeal proceeded.
The statutory framework for the resolution of costs issues is now found in Sections 168 and Sections 169 of the Legal Services Regulation Act 2015, together with Order 99 of the Rules of the Supreme Courts.
It was noted that the Trial Judge was not called upon to exercise her discretion to make a Costs Differential Order having regard to her award, but that was no bar to the Court of Appeal making a Costs Order appropriate to the award made on Appeal. However there are a number of factors to be considered such as:
- The award was so far within the jurisdiction of the Circuit Court;
- The outcome here was certainly predictable, particularly in circumstances where, the Court noted in the principal judgement that the injury fell readily within the category specified in the Book of Quantum. The Court said that no realistic assessment of this case could ever have led to the conclusion that it was anything other than a Circuit Court case and comfortably so.
- It was noted that the Plaintiff’s accident occurred in March 2017 with proceedings issuing in October 2018. If there was any uncertainty this would have been displayed by the report of the Plaintiff’s Orthopaedic Surgeon on the 5th of April 2019 wherein, it was noted that the Plaintiff had regained normal movement of her back and had only intermittent symptoms with a positive prognosis. No reasonable person could have thought at that stage that there was any prospect of the Plaintiff’s damages falling with the High Court jurisdiction.
- The Plaintiff did nothing to remit the case to the Circuit Court, despite the clear warning about costs given by the Defendants’ Solicitors in November 2018.
The Plaintiff suggested that the Court should take into account the fact that the Defendants did not apply to remit the matter and that it would be unduly harsh to penalise her in costs. However the Court rejected this assertion as it would entirely reverse the proper onus that lay on the Plaintiff to ensure that her claim was brought and continued in the appropriate jurisdiction.
However, the Court said that there is of course a wider range circumstances where the Court might properly consider exercising its discretion against making a Section 17(5) Order where for example, something unpredictable or uncertain occurs at Trial which might not reasonably have been anticipated, such as the following;
- An apportionment of liability;
- An item of Special Damage being disallowed, or
- The Plaintiff might have commenced proceedings in the High Court on the basis of medical opinion subsequently determined at Trial to be incorrect.
However, the Court noted that none of these arose in the present case and therefore, Justice Noonan made the following Orders:
- An Order that the costs of the Appeal would be awarded to the Defendants.
- The Plaintiff is entitled to her costs of the High Court to be adjudicated on the basis of a degree of €41,000 in the Circuit Court, without a certificate for Senior Counsel.
- The Defendant’s are entitled to an Order pursuant to Section 17(5)(a)(ii) awarding them the additional costs adjudicated to have been incurred by them defending the case in the High Court rather than the Circuit Court.
- When adjudicated the costs of each party set off against each other and any balance paid to the party entitled thereto.