The Court of Appeal has ordered the costs of an appeal in a personal injury case to be set off against additional costs incurred by the defendants in defending the case in the High Court rather than the Circuit Court.
In a costs ruling delivered on 11 May 2021, Mr Justice Noonan said the court’s earlier decision had reduced the plaintiff’s damages from €76,000 to €41,000. The High Court had assessed general damages at €70,000 and the parties had agreed €6,000 in special damages. On appeal, general damages were reduced from €70,000 to €35,000, comprising €30,000 for damages to date and €5,000 for future damages.
The defendants sought the costs of the appeal, an order limiting the plaintiff to Circuit Court costs for the High Court hearing without a senior counsel certificate, and a further order for the additional costs of defending the case in the High Court. The plaintiff argued, among other things, that the defendants had not applied to have the case transferred to the Circuit Court and that imposing both appeal costs and a costs differential would be unduly harsh.
The court awarded the defendants the costs of the appeal. It said their written settlement offer, which the plaintiff had declined, exceeded the amount ultimately awarded on appeal, even after the proposed costs differential. The ruling said the offer could have avoided virtually all of the appeal costs.
The plaintiff was entitled to High Court costs assessed on the basis of a €41,000 Circuit Court decree, without a certificate for senior counsel. The court said the award was well within the Circuit Court’s jurisdiction and that the case was not reasonably a High Court case. It also noted that the defendants had warned the plaintiff’s solicitors in November 2018 that they would seek a costs differential if the damages did not reach the High Court threshold.
The court directed that the defendants receive the additional costs found to have been incurred by defending the proceedings in the High Court rather than the Circuit Court. Because the court had no evidence on which to measure those costs, their amount is for the Legal Costs Adjudicator to determine. Once adjudicated, the parties’ costs are to be set off against each other, with any surplus paid to the party entitled to it.
The court also directed that only one amended notice of appeal be allowed for costs purposes and made no order on the costs of a motion to take up the digital audio recording, which both parties had agreed.