The High Court has refused an application for costs before the end of a dispute between Cork Plastics companies and Ineos Compounds (UK) Limited, deferring the issue until after judgment or another resolution of the case.
The judgment, delivered by Mr Justice Hanna on 24 July 2009, concerned costs in proceedings that had not yet been determined. The plaintiffs claimed that PVC compound supplied by the first named defendant was not of merchantable quality and had caused a “pinking effect” on fascia boards they manufactured. The defendants admitted liability shortly before the scheduled trial, describing the decision as commercial. The amount of damages remained to be decided.
The plaintiffs sought their costs of pursuing the claim to that point, including trial preparation costs. They argued that the liability admission meant they had succeeded and that costs could be dealt with before damages were assessed. They relied on Order 99 of the Rules of the Superior Courts, which allows costs to be addressed at any stage of proceedings.
The defendants said they had made a lodgement and argued that costs should await the decision on damages. If the plaintiffs received less than the lodged amount, the lodgement rules could affect their entitlement to costs. In the alternative, the defendants argued that making a costs order before the outcome was known would be hazardous.
Justice Hanna said Order 99 gave the court discretion to award costs during proceedings, but considered that Order 22, which governs lodgements, limited the exercise of that discretion in this case until the litigation was determined or a money award made. He said the final award could affect the costs outcome and that assessing costs beforehand risked injustice to either side.
The judge also noted that the court could depart from the lodgement costs mechanism at trial for special cause, and that the parties’ conduct could be relevant when costs were eventually considered. He said the court did not yet have a thorough view of that conduct. The court made no finding on the ultimate costs entitlement and refused only the application for an order at that stage, deferring determination until after judgment or other resolution.
The judgment also referred to related proceedings brought by Floplast Limited, where the defendants in this case acted as indemnifiers. The costs application covered those related proceedings as well.