The Court of Appeal has allowed Thomas Condron’s cross-appeal over costs in a dispute about a footpath built on a grass verge beside his property in Malahide, Co Dublin. It set aside an order limiting his costs to the Circuit Court scale and ordered the appellants to pay his High Court costs, once assessed.
The appeal concerned costs after the High Court found that Galway Holding Company Limited, Danmar Construction Limited, Stephen Treacy and Maureen Treacy had trespassed by building the footpath along the road-facing boundary of Condron’s property. The High Court ordered them to restore the verge and pay €10,000 in damages. That substantive judgment had already been upheld on appeal; the case before the Court of Appeal concerned the costs order.
The High Court had directed that the appellants pay Condron’s costs at the Circuit Court scale, with a certificate for senior counsel. It also refused their application for a differential costs order. The appellants argued that the costs should be limited because the claim could have been brought in the Circuit Court. Condron cross-appealed, saying that uncertainty about that court’s jurisdiction made the High Court an appropriate venue when he started proceedings in April 2016.
In a judgment delivered by Ms Justice Whelan, the Court of Appeal said uncertainty persisted while conflicting decisions on Circuit Court jurisdiction were considered in Permanent TSB v Langan. The Supreme Court resolved that issue in December 2017, after the 11-day High Court hearing had concluded. The Court of Appeal said it was reasonable for Condron and his legal advisers to consider there was a real risk that the Circuit Court lacked jurisdiction when the case was brought and while it proceeded.
The court also relied on the appellants’ conduct. They did not object to the case proceeding in the High Court and brought a counterclaim there, seeking declaratory and injunctive relief and €135,000 in damages, with further damages claimed. The court said that counterclaim exceeded the Circuit Court’s monetary jurisdiction. In those circumstances, it held that it would be fundamentally unfair to let the appellants rely on the statutory costs limit and that they were estopped from doing so.
The court did not revisit the underlying trespass finding, the restoration order or the €10,000 damages award. It ordered High Court costs for Condron, to be ascertained. On the costs of the cross-appeal, Justice Whelan’s preliminary view was that Condron should receive his costs; the appellants were given 21 days to file written submissions if they sought a different order, with a further 21 days for any reply.