The Court of Appeal has ordered solicitor Ms McNicholas to pay personally the Governor and Company of the Bank of Ireland’s costs of a failed appeal from 31 October 2021, along with costs arising from a later review application and related hearings.
In a judgment delivered on 14 February 2023, Mr Justice Allen said Ms McNicholas had been grossly negligent in persisting with an appeal that she knew, or ought reasonably to have known, was vexatious, wasteful of court time and an abuse of process. The court made a wasted costs order against her under Order 99, rule 9(1)(a) of the Rules of the Superior Courts.
The underlying High Court claim was for €2,751,216.73, said to be due under two loan facilities. The company, Balford Construction Limited, disputed that the loans were repayable on demand and sought to strike out that part of the bank’s claim. The bank also sought to amend the claim’s particulars and obtain summary judgment.
The appeal concerned a 2021 procedural order that brought the company’s motion forward so it could be heard alongside the bank’s motion. The Court of Appeal had dismissed the appeal in July 2022, finding that the High Court judge had not decided how the motions should be sequenced. The appeal had also been overtaken by later directions, the company’s abandonment of its strike-out motion, and the High Court’s determination of the bank’s application. The Court refused the company’s subsequent application to review the dismissal in November 2022.
Allen J said the appeal was misconceived from the outset, but did not make Ms McNicholas personally liable for the initial filing. He set 31 October 2021 as the point from which she was responsible for the appeal costs, allowing time after a Court of Appeal directions hearing for her to reconsider. He said the appeal’s continuation after that point was plainly wasteful, and noted that Ms McNicholas had acknowledged recognising that it was moot by May 2022.
The bank had also sought costs on a legal practitioner and client basis. The court declined that request, holding that party-and-party costs were sufficient to recover the expenses necessarily and properly incurred and that a higher costs basis could amount to double punishment.
The defendant company must pay the portion of the bank’s costs attributable to the appeal from service of the notice of appeal until 31 October 2021. Ms McNicholas must pay the appeal costs after that date, including costs of the May and June 2022 directions hearings, the aborted 6 October 2022 costs hearing, the review application and the costs application. The bank was also awarded its costs of the appeal and review application. The judgment did not determine the underlying loan dispute anew.