By Daniel Keane
The High Court has ordered Propiteer Ireland Limited to pay Castlehaven Property Finance DAC's legal costs after Propiteer discontinued Commercial Court proceedings, but has refused Castlehaven's request for a higher category of costs.
Propiteer began the proceedings in December 2024 alleging, among other matters, breach of contractual and fiduciary duties and conspiracy by the defendants. The case entered the Commercial Court in February 2025.
A security-for-costs application was due to be heard on July 22nd, 2025. Propiteer discontinued the proceedings on the eve of that hearing. It accepted that Castlehaven should receive its ordinary, or what the judgment calls “usual”, costs.
Castlehaven sought enhanced costs instead. These are calculated more generously than the normal party-and-party costs award and are generally reserved for exceptional cases where the court wishes to mark serious disapproval of a party's conduct.
Castlehaven pointed to several matters. It said there had been no pre-litigation warning. It also relied on the fact that David Marshall, who had authorised the proceedings, was no longer a director of Propiteer when an affidavit was sworn for the Commercial Court application stating that he was. Castlehaven further alleged that the proceedings had been brought for an ulterior purpose connected with Marshall's personal financial arrangements.
Mr Justice Twomey said the proceedings had undoubtedly been instituted on a false basis because of the incorrect statement about Marshall's directorship. However, he stressed that there had been no trial and no sworn evidence establishing Castlehaven's broader allegation about an ulterior motive.
The judge also placed weight on Propiteer's early discontinuance. He said civil litigants should not be discouraged from abandoning claims once they recognise that continuing them is inappropriate, as doing so saves court time and expense for opponents.
The court therefore ordered Propiteer to pay Castlehaven's usual costs, but not enhanced costs. It provisionally indicated that Propiteer should itself receive the usual costs of successfully resisting Castlehaven's enhanced-costs application.