The Court of Appeal has set aside an order requiring Greenwich Project Holdings Limited to pay Con Cronin’s costs of a High Court motion to dismiss the company’s proceedings. The court made no order for costs of that motion, after previously reversing the dismissal of the proceedings on appeal.
The costs judgment, delivered by Ms Justice Máire Whelan on 19 December 2022, concerned the allocation of costs following the substantive appeal. In July 2022, the Court of Appeal reversed the High Court order dismissing Greenwich’s proceedings for procedural failures and non-compliance with directions made by Mr Justice Jordan in July 2019. The proceedings will now continue to a substantive hearing in the High Court.
Mr Cronin argued that he should retain the costs awarded to him in the High Court for bringing the dismissal motion. He relied on findings of delay and non-compliance, and cited decisions concerning costs consequences for procedural failures and delay. The Court of Appeal said those authorities arose in materially different circumstances. It also noted that the claimed prejudice from delay had not been elaborated on, beyond inconvenience associated with concluding the sale of the property, and had not been shown to be more than marginal at most.
The court said Greenwich had succeeded in the appeal overall, although it had not succeeded on every ground. It found that the threshold of conduct needed to order a successful appellant to pay the costs sought by Mr Cronin had not been met. It also said the respondent had not proposed a less severe compromise, such as a timetable for progressing the case on terms that Greenwich pay his costs, which might have allowed the company to avoid the appeal.
The court therefore vacated the High Court costs order for the dismissal motion and made no order as to those costs. It also made no order for costs of the costs-allocation application or otherwise, subject to an earlier order: Mr Cronin is entitled to his costs in both courts relating to Greenwich’s unsuccessful application to reopen the High Court judgment, with payment stayed until the proceedings conclude. The court did not determine the overall costs of the proceedings, which remain for the trial judge.