The Court of Appeal has ordered Gerard Griffin to pay Allied Irish Bank plc’s costs of his application to change the proposed costs order in the substantive appeal. It directed that the costs of the High Court proceedings and the substantive appeal remain costs in the cause.
The judgment, delivered by Mr Justice Murray on 1 December 2020, addressed costs after the court’s substantive decision in [2020] IECA 221. In that earlier judgment, the court had refused summary judgment and proposed that the costs of the High Court hearing and appeal be costs in the cause. That means those costs would be dealt with as part of the eventual outcome of the proceedings.
Mr Griffin asked the court to award him the costs of the High Court and appeal, or alternatively the appeal costs alone. He argued, among other things, that costs should follow the event, that his position against summary disposal had been vindicated, and that he had to appeal to be allowed to defend the proceedings. He also said the bank had not produced positive evidence contradicting his claim that he had been assured that a payment discharged his entire liability for a debt incurred jointly with partners.
The court said those submissions did not provide a credible basis to change its provisional view that the bank had acted reasonably in seeking summary judgment and defending the appeal. It noted that the argument on which Mr Griffin ultimately succeeded—whether there was consideration underpinning a second facility letter—had not been advanced in the High Court. The bank was presented with that specific basis for the appeal only during the hearing.
The court said the bank had therefore not acted unreasonably in defending the appeal. It applied the approach in ACC Bank v Hanrahan, under which costs of a summary judgment motion leading to a plenary hearing are generally reserved or made costs in the cause. The judgment noted that a separate question about costs after a successful appeal against summary judgment had been reserved for future consideration in AIB v Cuddy.
The court ordered that the costs of the High Court proceedings and the substantive appeal be costs in the cause. It separately ordered Mr Griffin to pay the bank’s costs of the application to change the proposed costs outcome. Justices Haughton and Binchy agreed.