Everyday Finance Designated Activity Company (DAC) was awarded half its costs after the High Court joined it as an additional plaintiff in proceedings brought by Allied Irish Banks plc (AIB) against Paddy McKeown and Adelaide McCarthy.
In a judgment delivered electronically on 21 April 2020, Mr Justice David Barniville ordered the defendants to pay half of Everyday’s costs of its motion, with the amount to be adjudicated if the parties could not agree. He refused a stay on the costs order.
The costs decision followed the court’s 1 April judgment allowing Everyday to join the case under Order 17, rule 4 of the Rules of the Superior Courts. Everyday had initially sought to replace AIB as plaintiff or, alternatively, to be added alongside it. During the hearing it pursued joinder. The defendants opposed the application on several grounds, which the court rejected.
Everyday argued that costs should follow the event because it had succeeded. The defendants sought no order as to costs. They said Everyday had applied shortly before their appeal hearing, that they had prepared material to resist the proposed substitution, and that errors in Everyday’s motion had required additional work.
The judge said the defendants had continued to oppose the joinder application after being given an opportunity to reconsider their position. He rejected their argument that their main objection had been to substitution and that joinder was merely procedural. He also said the timing of the application did not justify depriving Everyday of costs, noting that the defendants had not opposed it on delay grounds before him.
The judge acknowledged errors in the motion and in a document describing AIB’s consent, but said the court had rejected the defendants’ objections based on those errors. He concluded that it would not be fair to make the defendants pay all of Everyday’s costs, in part because Everyday had changed the relief it pursued during the hearing. He ordered them to pay half.
The judgment also gave Everyday liberty to bring a further motion seeking to amend the 2017 order so it could be substituted for AIB as the party entitled to enforce it. The judge expressly said he was not expressing any view on whether that motion was well founded or should succeed. The motion was to be issued by 5pm on 1 May 2020 and listed nominally for 11 May, without a hearing that day. The court set affidavit filing dates and listed the matter for mention on 26 June to fix a hearing date.