The Court of Appeal has dismissed Skellig Fish Limited’s appeal against a High Court order that the costs of an interlocutory injunction application be “costs in the cause”. The appeal concerned costs only; the underlying sale was completed in 2017, while a later damages claim remained to be determined.
The dispute arose from a March 2016 agreement under which Cornelius Minihane was to buy 324 gross tonnes of fishing capacity, equivalent to 709 kilowatts, for €900,000. Minihane paid a €90,000 deposit. He said he commissioned a new vessel, costing about €6 million and funded by bank borrowing, in reliance on the agreement.
When Minihane sought to complete the sale in January 2017, the company’s solicitors did not give an undertaking that the capacity would not be dealt with or transferred. The company’s solicitor questioned whether the agreement had been approved by the board and whether it was sufficiently certain without a closing date. He also said the injunction application was premature, the company had not indicated it would refuse to complete, and damages would be an adequate remedy.
The High Court granted an interim injunction on 9 February 2017 and an interlocutory injunction later that month. Twomey J. found that Minihane had raised a fair issue to be tried and that damages were not an adequate remedy. The judge considered the balance of convenience favoured Minihane. The formal order recorded costs as reserved, but the parties agreed the judge had directed that they be “costs in the cause”.
In March 2017, the company’s solicitor emailed Minihane’s solicitors that the company considered the agreement enforceable and had clarified what it covered. The company also asserted that proceedings had been issued prematurely and sought its costs. The sale was completed on 6 June 2017, after a further High Court application to amend the order. Minihane later amended his claim to seek damages, including for alleged loss arising from delay in completing the sale.
On appeal, Skellig Fish argued that the court should review the injunction’s merits and conclude that the company should receive its costs. Minihane objected, saying the appeal grounds did not raise mootness and that his amended claims remained live. The Court of Appeal said the appeal concerned only the costs order and that it was not being asked to decide that the proceedings were moot.
Noonan J. held that the High Court’s order fell within the range of decisions reasonably open to it. The Court of Appeal would not rehear the injunction application, and Skellig Fish had not shown an error of principle or injustice. The appeal was dismissed. The court’s provisional view was that Minihane should receive the costs of the appeal, with Skellig Fish allowed 14 days to seek a short further hearing on that issue. The judgment did not determine the later damages claim.