Revenue Commissioners will recover the costs of an unsuccessful application to amend a case stated from Express Motor Assessors Limited (in liquidation), the High Court has ordered. The court refused Revenue’s request to make the company’s liquidator, Stephen Doran, personally liable or to prevent him from using company assets to meet costs for which he might be liable.
The judgment, delivered by Ms Justice Stack on 28 July 2021, followed her principal judgment of 21 June 2021. Revenue sought costs after the court refused the company’s application to add two proposed questions to the case stated.
Under section 169 of the Legal Services Regulation Act 2015, the court noted, a party that is entirely successful is entitled to costs unless the court orders otherwise. The judge found Revenue was not entirely successful: it prevailed on the substantive question of adding the proposed questions, but the court had also rejected Revenue’s position on two procedural matters. The company had used the appropriate procedure to bring its motion, and the judge said Revenue’s argument that amendments should ordinarily be made by the High Court did not fit the circumstances of this case.
The judge nevertheless exercised her discretion to award Revenue all costs of the amendment application. She declined to assess each issue separately as though the case had been tried in separate modules.
Revenue also sought an order requiring Doran to pay the costs personally and barring recourse to company assets for his own costs or costs of other parties for which he might be liable. Revenue relied on principles concerning personal costs orders against liquidators. The judge said such an order required clear and cogent evidence of misconduct. She found no evidence of misconduct, negligence or the circumstances in which the motion was brought. Revenue’s assertion that Doran knew the motion was not in the interests of creditors or the company was a submission, not evidence, she said.
The judge said the requested order could have a chilling effect on liquidators deciding whether to bring case-stated appeals. She concluded Revenue had established no basis for personal liability or the restriction on using company assets. The order was that Revenue recover the costs of the application from the company.