The High Court has allocated costs between Brownfield Restoration Ireland Ltd and Wicklow County Council across two sets of proceedings, after a complex matter that accounted for 90 hearing days. The ruling, delivered by Mr Justice Richard Humphreys on 19 July 2017, dealt only with costs in Module IV; it did not determine the substantive issues in that module.
The court said costs generally follow the event, but applied an approach that takes account of each party’s success on particular issues and the reasonableness of their conduct. Brownfield had argued that the case had a public interest dimension and that it had done the State a service. The judge accepted that point to some extent, while noting that Brownfield was also a commercial entity protecting its investment and had pursued serious allegations on which it did not succeed.
In the 2005 proceedings, which had been struck out, Brownfield was entitled in principle to costs, subject to exclusions. The award excluded costs for discovery and mistrial matters already addressed by a 2010 order, motions already dealt with in a 2012 order, and costs after the proceedings re-entered in 2015. The judge said later costs essentially arose under the 2008 proceedings. He also noted that an application concerning Rockbury followed inaccurate statements by Brownfield that it owned the site.
For the 2008 proceedings, the court made no costs order on the modular-trial application, the re-entry against Swalcliffe, or preparation of the issue paper. Wicklow County Council was awarded costs of its application to add Rockbury, which the judge said had been necessitated by Brownfield’s incorrect ownership statements. The council also received costs of its application concerning a supplemental affidavit about decisions before it exercised its powers under section 56.
On Module I, which mainly concerned allegations of mala fides, the council received two-thirds of the costs and Brownfield one-third; after set-off, the net award for that module went to the council. The judge said Brownfield had not succeeded on its corruption allegations against the council, though it had won on certain legal issues. Brownfield received the costs of Module II, where it succeeded. The council received the costs of Module III, having succeeded on the primary issue of the time-scale despite mixed success on subsidiary issues, and the costs of Module IV, where it had essentially succeeded on the costs submissions.
Costs under each heading include relevant reserved costs and properly apportioned fees and expenses. All costs across both proceedings are to be set off against one another, producing a single net amount payable to whichever party is ahead. Costs are to be taxed if the parties cannot agree the amount.