The High Court has ordered Michael Herbst to pay the first and second defendants’ costs after dismissing his claim for inordinate and inexcusable delay.
In a costs ruling delivered on 12 October 2022, Mr Justice Heslin said Patrick McGuckian and Alistair McGuckian were entitled to the entire costs of their motion to dismiss the proceedings, including the application about costs. They were also awarded the costs of the proceedings, including those incurred in the Circuit Court and any reserved and discovery costs. The amounts are to be adjudicated if the parties cannot agree.
The court had already dismissed the claim in a judgment delivered electronically on 1 April 2022. That decision followed a motion brought by the first and second defendants in October 2020. The court found that the plaintiff’s delay was both inordinate and inexcusable, and that the balance of justice favoured dismissal. It also cited a substantial risk of an unjust result if the case proceeded to trial, given the time between discussions and negotiations in 1999 and a trial that could not have taken place before the end of 2022.
The costs ruling addressed the plaintiff’s submissions that special circumstances justified departing from the usual rule that costs follow the event. He argued, among other points, that his claim had included a request for specific performance and damages in lieu, that a full trial had been avoided, and that periods of forbearance, interlocutory applications and other aspects of the case warranted costs in his favour, no order for costs, or a discount.
Justice Heslin rejected those arguments. He said the defendants had been entirely successful in their application and that no adverse findings had been made about the first or second defendants’ conduct. He also said the agreed periods of forbearance had already been taken into account in calculating delay in the earlier judgment, and that the costs submissions could not be used to mount a collateral attack on that decision.
The judge noted that the defendants’ solicitors had written in March 2018 offering to bear their own costs if the plaintiff applied to strike out the proceedings. The plaintiff did not take up that suggestion. In October 2018, the defendants also said they would seek costs if he proceeded with an application to transfer the case.
The ruling concerned costs following dismissal of the proceedings; it did not determine the merits of the underlying pleaded claim at trial. Existing Circuit Court costs orders in either side’s favour were to stand, while reserved costs were included in the order for the first and second defendants.