The High Court has awarded Tesleem Ojewale the costs of a preliminary issue and appeal over whether his personal injury proceedings were time-barred, but stayed the costs orders until the underlying case is determined in the Circuit Court.
In a judgment delivered on 7 July 2021, Ms Justice Nuala Butler also granted a certificate for senior counsel based on the complexity of the case. The ruling deals only with costs. The substantive claim, arising from a road traffic accident and alleging negligence by Caroline and Frank Kearns, remains fully defended and has not been decided.
The costs judgment follows an earlier High Court decision, [2021] IEHC 431, which allowed Mr Ojewale’s appeal from the Circuit Court’s decision to strike out his proceedings as statute-barred and to award costs against him. That earlier appeal judgment finally resolved the limitation issue, but did not determine whether the defendants were negligent.
The defendants accepted that Mr Ojewale should receive the costs of the Circuit Court application. They argued that there should be no costs order for the appeal, or that those costs should be reserved as costs in the cause, to be addressed after the substantive proceedings. They pointed out that Mr Ojewale might ultimately lose his claim. The plaintiff sought costs in both courts and a senior counsel certificate, citing the complexity of the appeal.
Justice Butler treated the successful appeal as a final determination of the limitation issue, even though it arose during ongoing proceedings. The timing of the claim would not be revisited at trial. She said the defendants were entitled to raise the limitation defence and seek a preliminary ruling, but having done so unsuccessfully, they had to bear the costs of that additional stage. The possibility that Mr Ojewale might lose the negligence case did not change how the costs of the limitation application should be allocated.
The court set aside the Circuit Court’s order, including its costs order against Mr Ojewale, and awarded him the costs of the application and appeal in both the Circuit Court and High Court. It rejected the request to make the appeal costs costs in the cause. However, although the defendants had not expressly applied for a stay, the judge stayed the costs orders in Mr Ojewale’s favour pending the Circuit Court’s determination of the substantive proceedings.