The High Court ordered Howth Estate Company and Julian Gaisford-St Lawrence to pay 70% of the plaintiffs’ costs of a motion to amend their statement of claim, with execution stayed until the action is finally determined.
In a ruling delivered on 6 July 2020, Mr Justice Allen said the plaintiffs had succeeded in obtaining leave to amend and that the motion was an event for costs purposes. He rejected the defendants’ request to leave the costs decision to the trial judge, reasoning that the motion concerned a procedural issue whose circumstances would not need to be revisited at trial.
The court had granted leave to amend in a written judgment delivered electronically on 12 June 2020. The present ruling addressed costs and consequential directions, not the substance of the amended claim. The judge said the amendment application was appropriate and had been “inappropriately and, in the event, unsuccessfully resisted.”
The defendants submitted that an opposing party is generally entitled to costs caused by an amendment, and that the costs of the motion should be reserved because the amendment might prove unnecessary depending on the eventual outcome. The judge accepted the general principle that the opposing party may be entitled to consequential costs, but said the position was affected where the way the application was contested substantially increased costs.
Mr Justice Allen estimated that the plaintiffs’ costs were about five times what they would have been had the defendants consented or limited their objection to brief points. He also found it reasonable for the defendants to wait for the affidavit grounding the motion before assessing whether to oppose it. The plaintiffs would have incurred some costs to obtain leave in any event, so the judge deducted 20%. He then allowed a further 10% deduction by way of set-off for costs the defendants would probably have been allowed had they consented or acquiesced. The net award was 70% of the motion costs.
The order permits an amended defence by 17 July 2020 and an amended reply by 31 July. The judge did not bar the defendants from seeking further particulars or discovery arising from the new plea, though he said he did not immediately see what additional material might be needed. He gave no directions for the further progress of discovery motions, observing that both sides’ use of short reply deadlines followed by immediate motions had likely made those disputes more protracted and expensive.