A Supreme Court judge said he would not interfere with a High Court order requiring a husband to pay 80% of the wife’s costs of a five-day hearing and 80% of certain reserved costs in a family property dispute.
In a separate judgment dated 23 July 2015, Justice John MacMenamin said he would also award the wife the costs of both days of the appeal. His judgment concerned costs only. It followed an earlier Supreme Court judgment dealing with the division of the parties’ assets.
The husband challenged the High Court costs order, arguing that the judge had not properly accounted for issues on which he had succeeded, particularly the wife’s capital gains tax arguments. He also raised the effect of costs on the parties’ financial positions. The wife’s counsel supported the order.
Justice MacMenamin said the High Court judge had treated the capital gains tax issue separately and made no costs order on it, while awarding the wife costs on the other issues. Of five central issues at the remitted High Court hearing, the husband was unsuccessful on four, the judgment said. The judge concluded that no significant error of principle had been shown that would justify appellate intervention.
The judgment also addressed the history of the proceedings. It recorded that at least 20 full days had been spent in court, including substantive and interlocutory hearings, and that 15 High Court applications and orders followed the Supreme Court’s earlier asset ruling. Justice MacMenamin referred to findings in the earlier proceedings that the husband had obstructed or hindered the sale of farmland ordered by the court. He said hearings had been made necessary by one party’s actions and that costs awarded for unnecessary hearings should not be treated as a sanction.
The Supreme Court’s earlier judgment had found the trial judge entitled to take account of the husband’s conduct concerning the sale. In the costs judgment, MacMenamin J. considered the trial judge well placed to assess the case’s history and the relative weight of the issues. He said the 80% award might be at the upper end of the range, but was not shown to fall outside the judge’s discretion.
The judgment is MacMenamin J.’s individual view on the costs appeal. It notes differences between the majority and minority views. It does not, by itself, state the operative order of the Supreme Court majority on the costs appeal.