The Court of Appeal has allowed appeals in two personal injury cases and ordered the plaintiffs to pay the defendants the difference between their High Court defence costs and the costs that would have been taxed on a Circuit Court basis. The amounts are to be determined by taxation unless the parties agree them. The court also ordered those sums to be set off against the plaintiffs’ costs awards.
The judgment, delivered by Mr Justice Michael Peart on 24 July 2018, concerned claims brought by Jibran Moin against Veronica Sicika and John O’Malley against David McEvoy. Both plaintiffs had won damages in the High Court, with costs on the Circuit Court scale and certificates for Senior Counsel. The awards, including special damages, were €41,305 and €34,808 respectively. At the relevant time, the Circuit Court’s limit for personal injury claims was €60,000.
The defendants appealed the costs orders. In each case, they had asked the trial judge to make a differential costs order under section 17(5) of the Courts Act 1981, and had previously warned the plaintiffs’ solicitors that they would seek one because the cases had been brought in the High Court. The trial judges declined to make the requested orders, while awarding Circuit Court scale costs and certifying Senior Counsel.
The Court of Appeal said section 17(5) gives a trial judge discretion to order a plaintiff to pay some or all of the defendant’s additional costs where the claim was determined in a court higher than the lowest court with jurisdiction. It said the section’s purpose includes encouraging claims to be brought in the appropriate lower court and limiting disproportionate costs. A damages award below a lower court’s limit does not automatically require a differential order; the circumstances of each case must be considered.
The court found that neither trial judge had given sufficient consideration to the section’s legislative purpose and relevant circumstances, including the defendants’ warning letters. It held that the awards were well below the Circuit Court limit and that the claims were not borderline. It also rejected the first trial judge’s view that a solicitor advising a person with a back injury to proceed in the Circuit Court would be negligent, while recognising that the extent and prognosis of an injury may initially be unclear.
The Court of Appeal exercised its own discretion and ordered the differential costs in both cases. It said it could not itself measure the sums, so the costs must be taxed unless agreed. The court urged the parties to consider agreeing the figures to avoid the expense of taxation.