The Court of Appeal has refused a request by seven respondents to delay enforcement of an order for Maria Keena’s costs after she succeeded in an appeal that returned her case to the High Court.
In a judgment delivered on 21 December 2023, Ms Justice Whelan said the respondents had not shown a valid basis for a stay. The court ordered that Keena receive her costs of the appeal. It did not decide who should bear the costs of the earlier High Court application; those costs are to be determined by the High Court judge at the conclusion of the hearing.
The appeal had set aside a High Court order dismissing Keena’s proceedings on the basis that she had failed to establish a prima facie case. The Court of Appeal directed that the trial resume at the convenience of the High Court. The underlying proceedings remain unresolved.
The fourth and fifth respondents accepted that Keena was entitled to appeal costs but sought a stay, arguing that the resumed case might ultimately be dismissed and that costs could then be set off. They also pointed to the case’s place in the Commercial List and argued that Keena was not impecunious. The sixth and seventh respondents also sought a stay until the High Court proceedings ended.
Keena argued that she should be reimbursed without further delay. The judgment notes that many years had passed since she handed over a stated €160,000 “non-refundable deposit” at the offices of EY in Dublin, an event giving rise to the proceedings. The respondents had yet to give evidence, and the court found no evidence of anticipated hardship if the costs order could be enforced immediately.
Justice Whelan said the respondents bore the burden of showing, on the balance of probabilities, that a stay was in the interests of justice. She distinguished cases involving costs orders in High Court interlocutory applications from this case, where Keena had won an appeal against a dismissal application. She also distinguished a prior appeal involving a rehearing, where the evidence showed that refusing a stay could create a real risk to the party’s ability to have the case reheard.
The court concluded that the respondents had identified no material risk of injustice beyond the routine inconvenience of paying a valid costs order. The stay was refused; the order concerns the appeal costs only and does not determine the outcome of the resumed proceedings.