The Court of Appeal has directed Allied Irish Bank plc’s claim against Sean Cuddy to proceed to a plenary hearing, with Cuddy’s defence limited to the “Limited Recourse Ground”. The court also directed the parties to exchange pleadings and ordered that the costs of the High Court and appeal be costs in the cause.
In a ruling delivered on 28 October 2020, the court set out the consequential orders following its 30 July decision. It had allowed Cuddy’s appeal to the extent that he showed an arguable defence on the Limited Recourse Ground. It rejected his Limitation Ground. The ruling says no final determination has been made on the Limited Recourse Ground, which may ultimately be decided in the bank’s favour.
The court directed the bank to deliver Points of Claim within three weeks and Cuddy to deliver Points of Defence within a further three weeks.
Cuddy sought the costs of the appeal, arguing that he had succeeded. He also sought the High Court costs, saying the bank had acted unreasonably by not agreeing to a plenary hearing in light of the affidavits filed. Alternatively, he asked that the High Court costs be costs in the cause. The bank argued that costs from both stages should be costs in the cause, saying it had not acted unreasonably in pursuing summary judgment or defending the appeal.
The court ordered the High Court costs to be costs in the cause. It said the bank had not acted “particularly unreasonably” by not agreeing to a plenary hearing, and that the appeal outcome had been finely balanced.
It also ordered the appeal costs to be costs in the cause. The court said it was not necessary to decide whether the approach in ACC Bank plc v Hanrahan applies in the same way to appeal costs. It noted that the bank had obtained judgment in the High Court, that its defence of that judgment on appeal was not unreasonable, and that the Limitation Ground had been rejected. The costs orders mean they will be recoverable by whichever party ultimately succeeds in the proceedings.