The High Court has ordered the State defendants to pay 75% of three plaintiffs’ costs after they succeeded in claims for false imprisonment, while refusing the defendants’ application for a differential costs order.
Mr Justice Cian Ferriter delivered the costs ruling on 14 February 2023, following his 12 January judgment awarding each plaintiff €2,500 in damages. The plaintiffs are Declan John Rafferty, Fintan Paul O’Farrell and Michael Christopher McDonald. The defendants are the Governor of Portlaoise Prison, the Minister for Justice, the Attorney General and Ireland.
The judge found the plaintiffs had been partially, rather than entirely, successful. The defendants had failed on liability and on their argument that no damages, or only nominal damages, should be awarded. But they had defeated the plaintiffs’ principal argument for substantial damages based on a period of about four years’ actionable false imprisonment.
The plaintiffs will receive 75% of their costs, assessed on the Circuit Court scale, with a certificate for senior counsel. The costs are to be adjudicated if the parties cannot agree.
The defendants sought a differential costs order under section 17(5) of the Courts Act 1981. They argued that the €2,500 awards were well within the Circuit Court’s €75,000 jurisdiction for false imprisonment claims, and that the cases could and should have been brought there.
The plaintiffs argued that the cases raised complex, novel legal questions and that it had not been possible to predict the low damages award. They also said the cases were connected with earlier Article 40 proceedings and had practical importance for other claims involving transferred sentenced prisoners.
Justice Ferriter refused the application. He said the cases raised novel questions about liability for defective detention warrants issued under the Transfer of Sentenced Persons Act 1995 and how damages should be assessed where the period of unlawful detention in Ireland overlapped with imprisonment the plaintiffs otherwise faced in England. Those issues made the High Court an appropriate forum, he said, and the judgment was likely to have useful precedential effect in other litigation.
The judge also noted that the defendants had not sent a costs warning letter or suggested during the proceedings that the cases belonged in the Circuit Court. He said that absence was not necessary to defeat a differential costs application, but supported his view that maintaining the cases in the High Court had been reasonable.
He cautioned that future plaintiffs bringing similar claims would now be aware of the likely approach to damages and could have less basis to resist a differential costs order.