The Supreme Court has ruled that Heather Cody’s costs of her Circuit Appeal and the costs of the Circuit Court are to be costs in the cause, after sending the possession action back for a plenary hearing.
The costs ruling, delivered on 28 July 2021, followed the Court’s April decision allowing an appeal by Bank of Ireland Mortgage Bank. That decision vacated the order made by Simons J. in the Circuit Appeal and remitted the proceedings to the High Court for a plenary hearing under Part IV of the Courts of Justice Act 1936, with consequential orders on pleadings. Whether possession should be granted remains undecided.
Before the appeal hearing, the Bank had undertaken to pay Ms Cody’s Supreme Court appeal costs on a party and party basis. The costs ruling therefore concerned the Circuit Appeal and Circuit Court costs. Ms Cody had represented herself. The High Court had awarded her costs and expenses in those proceedings and vacated a costs order against her made in the Circuit Court.
Ms Cody argued that she should receive the Circuit Appeal costs because the Circuit Court’s summary possession order had been set aside. The Bank argued that she had not succeeded in that appeal and sought to have the High Court order, including its costs provisions, vacated. It proposed reserving Circuit Appeal costs to the plenary action.
The Supreme Court considered the approach in ACC Bank Plc v Hanrahan, which generally favours reserving costs or making them costs in the cause when a summary judgment dispute is remitted for plenary hearing. It said the action remained live and neither side had retained the full benefit of the Circuit Appeal result: the Bank had succeeded to a large extent in reversing Simons J.’s conclusion, while Ms Cody had succeeded in showing that the Circuit Court order was wrong.
The Court said the Bank could have conceded that the matter was unsuitable for summary disposal. Because it did not, hearings took place before Simons J. and on appeal without finally determining the issues or narrowing those to be tried. It therefore ordered that only Ms Cody’s Circuit Appeal costs be costs in the cause. The Circuit Court costs were also made costs in the cause.
The Court declined to reserve those costs for the judge hearing the plenary action, saying that hearing would not concern the summary-motion orders or the affidavit evidence filed by either side.