The Court of Appeal has upheld a High Court costs order against Philip Morrissey and ordered him to pay the respondents’ costs of his unsuccessful appeal. The costs judgment, delivered by Ms Justice Máire Whelan on 26 May 2023, concluded that there was no basis to depart from the usual rule that costs follow the event.
The appeal concerned an earlier ruling that Morrissey could not pursue an application under section 438 of the Companies Act 2014 seeking to compel receivers of Dan Morrissey (Irl) Limited to grant him a 10-year agricultural lease over about 110 acres at Powerstown, Co Carlow. His appeal against that ruling had already been dismissed. The Court of Appeal was now deciding how costs should be allocated.
Morrissey, who represented himself, asked the court to make no costs order for the appeal and to set aside the High Court order for costs. He argued that the receivers’ management and short-term letting of the land raised concerns about agricultural practice and the environment. He also said he had not known that the land was leased to his brother, Kevin Morrissey, and would not have brought the application had he known.
The judgment noted that Morrissey learned of the lease by 25 April 2022 but continued pursuing the application and filed a further affidavit two days later. It also referred to a letter from the receivers’ solicitors, dated 1 April 2022, which questioned the legal basis for the requested order and warned that costs would be sought if the application failed.
Morrissey relied on the Aarhus Convention and argued that the courts should have advised him about applying for a protective costs order. The Court of Appeal rejected that argument. It found that the case had been brought to secure a valuable lease for Morrissey’s own private and commercial benefit, rather than to resolve an environmental or public-law issue. The judgment also held that the statutory environmental costs protection he invoked did not apply and that courts were not required to advise litigants about possible applications for protective costs orders.
The court found the respondents entirely successful in both courts. It declined to interfere with the High Court’s costs decision and awarded the respondents their costs of the appeal as well. Costs in both courts are to be assessed if the parties cannot agree.