The High Court has refused a bid to set aside a 2016 judgment and ordered the first named defendant to pay Start Mortgages DAC’s costs of the application.
In a supplemental judgment on costs, Mr Justice Garrett Simons said the application had already been refused in a principal judgment delivered on 30 January 2023. The original judgment and order were entered on 18 July 2016 and had not been appealed. The court said the substantive merits of the proceedings had therefore been finally determined.
The first named defendant, who brought the motion, argued in written submissions that the 2016 hearing had proceeded without him being prepared. He alleged that this involved a denial of due process, fair procedure and constitutional rights. The judge said those submissions largely revisited the merits of the failed application rather than addressing whether the usual costs position should be changed.
The court explained that a party entirely successful in civil proceedings would ordinarily receive its costs, although it had discretion to make a different order and was required to give reasons for doing so. The judge found no factor that justified withholding costs from Start Mortgages. He said this was not a case in which the unsuccessful party had acted reasonably in bringing the application or raised a point of public importance.
The judge described the application as misconceived and without merit. He also said the defendant’s affidavit gave a misleading impression of what had happened at the 2016 hearing. Among other things, the defendant had not disclosed that the trial judge relied on the precedent in Kearney v KBC Bank Ireland plc, and had incorrectly said his affidavits were not opened to the court. The judge said an applicant seeking to invoke the exceptional jurisdiction to set aside an earlier judgment had a duty of candour.
The court ordered that the reliefs sought in the notice of motion dated 10 November 2022 be refused, for the reasons given in the principal judgment. Start Mortgages was awarded its costs of and incidental to the motion against the first named defendant, including the costs of its written submissions on costs and any reserved costs. The costs are to be adjudicated under Part 10 of the Legal Services Regulation Act 2015 if the parties cannot agree.