The Court of Appeal has ordered Brian McDonagh, Maurice McDonagh and Kenneth McDonagh to pay the respondent’s costs of their appeal, including any reserved costs, and refused their request to stay the order pending an application for leave to appeal to the Supreme Court.
In a judgment delivered electronically on 7 March 2024, Mr Justice Charles Meenan said the costs were to be adjudicated in default of agreement. Justices Whelan and Noonan authorised him to state that they agreed with the judgment.
The costs decision followed the court’s 18 January 2024 judgment dismissing the appellants’ appeal. The High Court had held that their claim against CBRE, the fifth named defendant, was barred under section 11 of the Statute of Limitations Act 1957, as amended.
After the appeal was dismissed, the Court of Appeal indicated that it was provisionally minded to award costs against the appellants because the respondent had been entirely successful. It invited written submissions opposing the proposed order. The appellants submitted that a costs order would be “a further injustice against the McDonagh family” and sought a stay. The respondent replied to their submissions.
Meenan said the Legal Services Regulation Act 2015 entitled an entirely successful party in civil proceedings to costs unless the court ordered otherwise, having regard to the circumstances and conduct of the case. He said the appellants’ submissions did not identify a statutory exception or other circumstance that would justify withholding costs. Calling an award unjust, he said, did not establish a reason to deny costs for the failed appeal.
The court also refused the stay application. It applied the requirement that an applicant show an arguable, bona fide ground of appeal. The appellants referred to documents they said would persuade the Supreme Court to overturn the decision. Meenan said further documentation could not be introduced without the court’s leave through submissions on costs, and it could not establish an arguable appeal ground in this application. He also rejected as an arguable ground the appellants’ criticism that the earlier judgment mentioned a “Compromise Agreement” in its background section.
The judgment decides the appeal costs and stay applications. It does not decide whether the Supreme Court will grant leave to appeal.