The Court of Appeal has awarded Gunta Kadege 80% of the costs of her appeal after rejecting Dunnes Stores’ challenge to liability but reducing her damages from €160,901 to €140,901.
In a costs ruling delivered remotely on 27 March 2023, Mr Justice Noonan said the plaintiff would also receive her full costs of the High Court hearing, calculated on the basis of the Court of Appeal’s reduced award. Justices Haughton and Allen authorised him to record their agreement with the ruling.
The court had delivered its principal judgment on 15 February 2023. It rejected the company’s appeal against liability but allowed its appeal on the amount of damages. The parties were then directed to provide written submissions on costs.
Dunnes Stores argued that there should be no order for the costs of the appeal because the plaintiff had not been entirely successful. Alternatively, it asked the court to limit her costs recovery to 50%.
The plaintiff argued that she had been entirely successful in the appeal. She said Dunnes Stores had made no offer that she needed to beat and that the general damages awarded by the appeal court exceeded the amount the company had argued for.
Justice Noonan referred to the approach discussed in an earlier Court of Appeal decision, Higgins v Irish Aviation Authority. In a defendant’s appeal on damages where the award is reduced, the usual approach may be to make no order for appeal costs if the defendant made no offer at least equal to the revised award and the plaintiff had not indicated willingness to accept that amount or less. He said there was no suggestion that either side had made an offer or counter-offer in this case.
However, Justice Noonan said liability was by far the main issue in the appeal. The written and oral submissions had focused mostly on liability, while the quantum issue took up only a short section of the principal judgment. He also noted that there had been little or no dispute about quantum in the High Court, where the medical reports were agreed and no oral medical evidence was required.
Considering the reduced award and the fact that the plaintiff could not be described as entirely successful in the appeal, the court found a modest reduction in her appeal costs appropriate. It set her entitlement at 80%. The ruling addressed costs following the principal appeal judgment; it did not revisit the liability decision.