The High Court has ordered the two directors of Lackabeg Ltd, trading as The Arc Bar & Restaurant, to pay the respective plaintiffs’ costs of motions seeking discovery and oral examination in aid of enforcing earlier judgments. The order follows the plaintiffs’ successful appeal from the Circuit Court’s refusal of that relief. The underlying dispute about whether company assets may have been put beyond the reach of the plaintiffs remains undecided.
In a supplemental judgment delivered on 13 August 2024, Mr Justice Garrett Simons addressed the costs of the motions and appeal. He said the issue was confined to costs; no finding had yet been made on the substantive allegation concerning the company’s assets. That issue could be considered, if at all, only after discovery and cross-examination of the directors.
The directors had been joined as respondents because the relief sought would affect them personally. They opposed the motions, arguing in part that the Circuit Court Rules did not permit examination and discovery in aid of execution of a monetary judgment. The High Court rejected that argument in its principal judgment, delivered on 29 April 2024, and granted the relief sought. The directors’ opposition to the motions and appeal was unsuccessful.
The judge ruled that the plaintiffs could recover costs from the directors personally because the motions were addressed to the directors and their opposition had caused costs to be incurred. He distinguished the case from authorities concerning when a non-party who funds litigation for a company may be liable for costs. He applied the general principle that costs follow the event, finding no reason to depart from it.
The award covers the costs of the motions before the Circuit Court and specified appeal costs. Appeal hearing costs are to be assessed as if there had been one one-hour hearing on 18 December 2023. No costs are allowed for the listings on 26 February or 9 April 2024. The plaintiffs may recover costs incurred before 18 December, for a 14 May 2024 listing, for the 12 July costs hearing, and for their written submissions. The order also includes reserved costs, the notices of appeal and costs associated with the plaintiffs’ affidavits. Costs are to be taxed under Order 61 of the Rules of the Superior Courts if the parties cannot agree.
The Circuit Court order of 1 February 2023 was set aside. Orders sought in the plaintiffs’ 9 September 2022 notice of motion were substituted, allowing discovery and examination of the two directors before the Circuit Court. The parties may apply to the High Court for directions about arranging the directors’ attendance and examination.