The High Court has awarded Denis Murnaghan the costs of his proceedings against Markland Holdings Limited and Cantier Construction Limited, subject to exceptions for certain injunction and adjournment costs and work on an unproved bill of quantities.
In a judgment delivered on 20 December 2004, Miss Justice Laffoy rejected the defendants’ argument that a €300,000 settlement offer made on the first day of the hearing should affect the costs award. The offer, made on behalf of both defendants without an admission of liability, was open until 2pm on 19 October 2004. The defendants argued that the award to Murnaghan was about 80% of the offer and that this should affect the costs of part of the hearing.
The judge said the offer could not be used to penalise Murnaghan for not accepting it. It came too late in the proceedings and left the parties’ responsibility for costs already incurred wholly unresolved. That made it impossible to assess who had won “as a matter of substance and reality” had the offer been accepted.
The defendants also argued that Murnaghan should not receive all his costs because the special damages awarded were less than a quarter of the amount claimed, and he had not pursued defamation or aggravated damages claims. The judge had previously found that some of Murnaghan’s decisions were manifestly unreasonable and that some claims were transparently unreasonable. However, she did not consider his claim that the damage to No. 5 Pembroke Place could only be remedied by demolition and reconstruction to amount to an abuse of process.
The court made specific exceptions to the costs award. Murnaghan was not awarded the reserved costs of his interim injunction application, but was awarded the reserved costs of the interlocutory injunction application. The judge said construction work on No. 5 had caused damage, and Murnaghan was entitled to pursue that remedy on notice to the defendants.
There was no order for costs arising from a February 2004 adjournment. The plaintiff and first defendant were awarded costs thrown away when the May hearing was adjourned so the second defendant could defend the assessment of damages. Both defendants were awarded the costs of the day for the July adjournment, which followed the plaintiff’s sale of No. 5 and changed the basis on which his loss would be calculated if liability were established.
Murnaghan was not entitled to the costs of preparing a bill of quantities for reconstructing No. 5; each defendant could recover costs incurred examining it. Subject to those exceptions, he was awarded the costs of the proceedings, including reserved costs. The judge noted that defendants’ eventual costs liability might be disproportionate to the damages awarded and referred to lodging money in court as a mechanism available under the rules.