The High Court has ordered the plaintiff, Donal Carey, to recover two-thirds of the costs of his successful motion for leave to amend pleadings, with execution of the costs order stayed pending determination of the main proceedings.
Mr Justice Garrett Simons made the order on 7 December 2021 in Carey’s action against Paul Sweeney, trading as Paul Sweeney Financial Services, and Cantor Fitzgerald Ireland Limited. The judgment deals with the final form of orders following the court’s principal judgment of 27 October 2021, which granted leave to amend. The second named defendant had opposed the application, which required a two-day hearing.
The court rejected the second defendant’s submissions that costs should be dealt with as costs in the cause, or reserved for the trial judge. The judge said the usual approach under Order 99, rule 2 of the Rules of the Superior Courts is for the judge hearing an interlocutory application to decide its costs, unless liability cannot justly be determined on the material before the court.
In fixing costs, the judge considered that the amendment had been needed because of shortcomings in the initial pleadings, but also that the second defendant’s unsuccessful opposition had increased costs. The judge found that opposition unreasonable in the costs context and said it had caused unnecessary expense and delayed progress: the main action had been stalled for about nine months after the amendment motion issued in February 2021.
The plaintiff is also to receive the costs of written submissions dated 29 November 2021 on the costs issue. The second defendant is entitled to costs arising from the requirement to file an amended defence. Costs are to be measured under Part 10 of the Legal Services Regulation Act 2015 if the parties do not agree them.
The stay means the costs order cannot be enforced while the main proceedings remain unresolved. The judge said interlocutory costs orders may need to be set off against the final costs position. The plaintiff may have the costs measured in the interim.
The court also set a timetable: the amended statement of claim was due by 21 December 2021; any request for particulars by 28 January 2022; replies by 25 February 2022; and the amended defence by 25 March 2022. The parties may revise the timetable by consent, and have liberty to apply to the court as necessary. The judgment determines costs and procedural directions; it does not decide the substantive action.