The Court of Appeal has ordered Kieran Doyle to pay 75% of the Bank of Ireland’s costs of his appeal, after reducing the High Court judgment against him by €468,065 in an earlier ruling.
The court said the bank had substantially resisted the appeal but could not be considered entirely successful because its High Court judgment had not been corrected by consent and had to be varied by the Court of Appeal. The costs decision was delivered on 28 April 2023 by Edwards J, with Whelan J and Ní Raifeartaigh J concurring.
The earlier appeal judgment, delivered on 21 December 2022, rejected six of Doyle’s nine grounds in full and rejected the remaining three save for substituting a judgment figure of €7,005,283.47 for €7,473,348.47. The bank had amended its summary summons before the appeal hearing to claim the lower amount, but the High Court judgment had not been corrected on that basis.
In written submissions on costs, the bank sought its full appeal costs, arguing the ordinary rule was that costs follow the event. It said the reduction resulted from an oversight in calculating credits and allowances, occupied little or no court time and could have been corrected by consent. The bank argued that the appeal costs were instead incurred because Doyle pursued nine grounds, all rejected by the court apart from the limited adjustment to the judgment figure.
Doyle asked for no order as to costs. He argued that his challenge under section 17(2) of the Civil Liability Act 1961 was reasonable because the law was uncertain when the appeal was heard, with conflicting authorities. The Court of Appeal accepted that this issue had been reasonably argued and that the uncertainty was later addressed in Ulster Bank Ireland DAC v McDonagh. But it said the section 17 point was not the primary ground of appeal, occupied about one third of the hearing and somewhat less than one third of the court’s overall time. Doyle ultimately lost that argument.
The court found special and unusual circumstances justified departing from the usual costs rule, but not to the extent of making no costs order. It ordered Doyle to pay 75% of the appeal costs, as agreed or otherwise ascertained.
The court also granted a stay in principle on its substantive and costs orders. The stay will lapse 21 days after the final order is perfected unless Doyle files an application for leave to appeal to the Supreme Court within that period. If he does, the stay continues until that application is decided. Any further stay after leave is granted would be for the Supreme Court to consider.