The High Court has ordered North Tipperary County Council to pay the costs of a motion brought by Elizabeth Cleary, who was identified in the proceedings as a proposed third party. The costs are to be taxed if the parties cannot agree, on the basis of a single motion.
The judgment, delivered by Mr Justice Michael Peart on 25 November 2008, concerned costs following an earlier decision on Cleary’s motion. She had sought to set aside an order made by Mr Justice Charleton on 16 July 2007.
The council agreed that a second order granting it leave to issue and serve a third-party notice should be vacated by consent, because Cleary should have been put on notice of the application. Both the council and Cleary accepted that the appropriate step would have been for the council to seek an extension of time to issue and serve a notice under the July 2007 order.
In a judgment delivered on 10 March 2008, Peart J declined to set aside Charleton J’s order and granted the council an extension of time. The court then heard submissions on costs.
Peart J said the usual rule would have entitled the council to the costs of Cleary’s unsuccessful motion, unless there was a special reason to depart from it. He decided that the usual rule should not apply.
The judge noted that Cleary could have waited for the council to apply formally for an extension of time, but her motion drew attention to the procedural difficulties. The council’s delays—in seeking leave to issue the notice and then failing to issue it before service—also weighed against making Cleary pay costs.
The court treated the matter, for costs purposes, as if it had simply been the council’s application for an extension of time. Peart J considered it fair for Cleary to receive the costs she would have been entitled to had such an application been made. Exercising its discretion under Order 99 of the Rules of the Superior Courts, the court ordered the council to pay her costs.