The High Court has ordered Kiernan Milling Unlimited Company to pay the defendant’s costs of its unsuccessful motion for summary judgment, while staying enforcement of that costs order until the underlying proceedings are determined.
In a separate ruling on costs, Ms Justice Eileen Roberts said the summary judgment application was an optional step in plenary proceedings and was not an integral part of the usual process. The plaintiff chose to seek immediate judgment for part of its claim despite a dispute over a variation to a settlement agreement and when payment fell due.
The court had refused the plaintiff’s application for summary judgment for €3.4 million on 21 July 2023. The judge noted that the underlying indebtedness and amount owed were not disputed, but the timing of payment was. The trial judge may find that the full settlement sum had fallen due by the time of trial, she said, but that would not establish that summary judgment should have been granted when the motion was brought.
The costs decision concerns two applications in the proceedings. The second was a Mareva motion seeking an injunction over proceeds from the sale of properties being marketed by the defendant. The court had refused that relief, but directed the defendant to confirm an undertaking that specified sums would be held by his solicitors pending determination of the proceedings. That undertaking became a court order on 28 July 2023 and remains in place.
The judge made no order as to costs of the Mareva motion, meaning each party bears its own costs. She said the plaintiff had raised meritorious arguments because pre-motion discussions about an undertaking had not resulted in terms that gave it sufficient comfort. A suitable undertaking, she said, could have avoided the motion or its hearing. The defendant’s later affidavit proposed an undertaking, but the plaintiff could not rely on it until the court made its terms an order.
The court heard submissions on costs on 4 October 2023. It ordered that the defendant recover his costs of the summary judgment motion from the plaintiff, with the amount to be adjudicated if the parties cannot agree. Execution of that costs order is stayed pending determination of the proceedings. The costs ruling does not determine the underlying claim or when the settlement payment is due.