The High Court has ordered Promontoria (Aran) Limited (PAL) to pay the costs of a personal insolvency arrangement application it had opposed, after the court rejected PAL’s objections. The order followed a substantive judgment delivered on 13 June 2023 and written costs submissions from the parties.
In his ruling delivered on 13 July 2023, Mr Justice Mark Sanfey said the personal insolvency practitioner, Gary Digney, and secured creditor Tom Casey had been “entirely successful” under the relevant costs provision. Their costs are to be adjudicated if the parties cannot agree.
The original application sought confirmation that a personal insolvency arrangement (PIA) would come into effect. PAL argued that a charge held by Casey was an impermissible preference and that the arrangement was unfairly prejudicial to PAL. The court had found neither objection valid in its June judgment. PAL had also argued that an equitable mortgage it claimed should take priority over Casey’s charge.
In considering costs, the judge rejected PAL’s submission that the practitioner should have gathered evidence from Casey earlier. Casey had sworn an affidavit, made written submissions and instructed counsel to defend his position. The judge said Casey’s participation was necessary and that it would not have been fair to expect the practitioner to argue Casey’s case for him.
The ruling noted the preference issue was novel and had taken considerable court time. But the judge said PAL had relied on its objections to defeat the application and had been unsuccessful. He also noted that PAL had not appeared at a March 2021 hearing concerning Casey’s application to prove his debt as a first legal charge, despite having notice, and had delayed proceedings to validate its alleged equitable mortgage.
The judge amended the court’s 8 March 2021 order to reflect what he said had actually been decided. The replacement wording records that Casey had proved a debt of €256,800, secured by a first legal charge dated 3 February 2019 over a property identified in the order as 7 Sandy Lane, Wexford. The amended order makes no costs order in relation to that hearing.
PAL sought a stay of the PIA approval pending an appeal and a stay of any costs award. The judge refused to stay the final order because PAL had provided no grounds for a proposed appeal that would allow the court to assess it. He allowed a one-week stay on the final order so the parties could consider their positions.