The Court of Appeal has ordered Brian McDonagh, Kenneth McDonagh and Maurice McDonagh to bear the respondents’ costs of proceedings in the court and the High Court, after the defendants were unsuccessful in their defence and appeal.
In a costs ruling, the court considered submissions following its joint judgment of 6 April 2022. At paragraph 246 of that judgment, Murray and Collins JJ. had expressed the provisional view that the unsuccessful appellants should pay the respondents’ costs. The defendants were invited to make submissions before the court decided the issue.
Brian McDonagh submitted on his own behalf and purportedly for Kenneth and Maurice McDonagh. The court said it saw no basis for one personal litigant, as each defendant then was, to represent the others. It added that this did not affect the application because the submissions identified no plausible reason to release any defendant from the costs consequences of having been entirely unsuccessful in defending the proceedings and in the appeal.
The submissions included that the defendants did not accept that financial liabilities were due to the plaintiffs. The court said that was irrelevant to costs in light of the conclusions in its principal judgment. A claim that the 6 April judgment contained substantive errors was also rejected as a basis to resist costs; the court said such errors, which had not been identified, were a matter for the Supreme Court if it granted leave to appeal.
The defendants also argued that issues under the Civil Liability Act 1961 concerned matters of public interest and national importance. The court said the potential significance of some appeal issues in other proceedings did not justify refusing costs. It found that the Act issues were not the only issues in the case, were raised to protect the defendants’ financial interests, and concerned statutory construction rather than constitutional or European law. The court said the defendants had comprehensively lost each aspect of their asserted application of the statute.
The court was not persuaded that there was a basis to depart from the norm envisaged by the Legal Services Regulation Act 2015. It ordered costs in accordance with paragraph 246 of the substantive judgment. The ruling does not state the amount of costs awarded.