The High Court has reserved the costs of BMW Automotive (Ireland) Ltd.’s motion to set aside third-party proceedings until the hearing of the action, finding that disputed facts likely to arise again at trial made it unable to decide liability for costs fairly at this stage.
In a ruling delivered on 25 June 2021, Ms Justice Eileen Creedon considered submissions from the defendants and BMW, the first named third party. The motion had been issued on 10 October 2019 under, among other provisions, section 27 of the Civil Liability Act 1961. BMW sought to set aside the third-party proceedings on the ground that the notice had not been served as soon as reasonably possible.
In a judgment delivered on 16 April 2021, the court had found that the notice was served as soon as reasonably possible and declined to set aside the proceedings. It then invited the parties to agree costs or make submissions. The defendants argued that they should receive the costs of the motion, with payment stayed until the end of the proceedings. They said the issue had been conclusively decided in their favour and would not need to be revisited.
BMW argued that costs should be left to the trial judge. Its submissions said affidavit evidence disclosed factual disputes likely to arise again, including what the parties had agreed about specialist testing and retrieving data from the motorcycle. The court’s earlier judgment had said it could not resolve the conflict about an alleged agreement on technical examination without evidence from a named individual.
The court said the approach to costs for an interlocutory application remained the same under both the former and amended rules: it should make a costs order unless it could not justly decide liability on the application before it. Although the court had found the third-party notice was served in time after assessing the circumstances and the case’s progress, it said the motion disclosed factual conflicts likely to require determination at trial.
The court concluded that the trial judge would be better placed to decide the motion’s costs after those issues were resolved. It affirmed its earlier decision to reserve costs to the hearing of the action. The ruling did not decide who will ultimately bear those costs.