The Court of Appeal has stayed costs awards in favour of Balford Construction Limited until the bank’s remaining claim against the company is resolved in the High Court. It also refused the company’s request to review an earlier appeal judgment and made no order for the costs of the stay application.
The ruling, delivered on 30 July 2021 by Whelan, Donnelly and Ní Raifeartaigh JJ., followed the court’s substantive judgment of 9 June 2021. That judgment struck out Allied Irish Bank plc’s claim concerning a bank guarantee to Roscommon County Council, including the part of the claim referring to €167,000. The court dismissed Balford’s appeal against the remaining claims, which were to proceed to a plenary hearing.
The June judgment proposed giving Balford the full High Court costs of its summary judgment motion and 50% of the appeal costs, with the other half reserved for determination in the High Court action. The bank accepted the substance of that proposed costs order but sought a stay until the proceedings ended.
Balford’s submissions alleged that the appeal had denied it a fair hearing, citing what it said were inaccuracies in the account of evidence and the appeal. The company filed no motion to review the judgment. The Court of Appeal said the exceptional threshold for review was not met and refused the application. It did not require the bank to respond to those submissions.
On the stay request, the bank argued that it might ultimately succeed in the High Court and need to set off its costs against the awards to Balford. It also said enforcement of a later costs order in its favour could be difficult. Balford disputed the bank’s account of the underlying loan claims and relied on the bank’s withdrawal of the guarantee claim. Those were submissions by the parties, not findings resolving the loan dispute.
The court stressed that it had not determined the merits of the claimed loan agreement or the bank’s application to amend its pleadings; those matters remain for the High Court. It also said it had not found that a bank guarantee existed. In its earlier judgment, however, it had expressed concern about what it described as clearly incorrect averments concerning the guarantee, particularly an assertion that the bank had advanced money when it had not.
Weighing the competing interests, the Court of Appeal granted a stay on the costs awards. It noted that the bank’s claim was larger than the costs of the motion and appeal, and that costs of a plenary hearing were likely to exceed appeal costs. The court said both parties should bring the proceedings to a conclusion as soon as reasonably possible. It made no order for the costs of the stay application.