The Court of Appeal has awarded Thomas Kevin Smith and Mairead Smith all their costs in the High Court and on appeal after they overturned a ruling over a restrictive covenant affecting land held by Jackson Way Properties Limited.
In a judgment on costs delivered on 5 October 2023, Ms Justice Whelan said the Smiths had substantially succeeded in their appeal and had secured the key orders sought in their counterclaim. The court had already reversed the High Court decision in its substantive judgment, [2023] IECA 185, delivered on 21 July 2023.
The underlying dispute concerned a covenant in a 1947 deed of transfer. The High Court had concluded that the covenant did not bind land held by Jackson Way and that the Smiths could not enforce it against the company’s land. Those conclusions were reversed on appeal.
Jackson Way accepted that the Smiths had been largely successful but argued they should not recover costs for issues on which they had lost. It sought a reduction and set-off, pointing in particular to the Smiths’ unsuccessful arguments under sections 6 and 58 of the Conveyancing Act 1881. Jackson Way also relied on points rejected in the High Court, including an argument that it had acknowledged the covenant’s effect by obtaining releases from neighbouring landowners. The Smiths did not pursue their separate laches argument on appeal.
The court found that the Smiths were not successful on every argument, but held that their alternative legal arguments were reasonably raised and had been presented efficiently. The judgment said Jackson Way had not shown that those arguments materially increased the costs of the litigation. It also rejected an overly detailed allocation of costs among the issues, describing the case as having been run as a single integral unit.
The court concluded that neither the costs principles in Veolia Water v Fingal County Council nor sections 168 and 169 of the Legal Services Regulation Act 2015 justified reducing or apportioning the Smiths’ costs. It ordered that they recover all their costs in the Court of Appeal and the High Court.