The Court of Appeal awarded Debbie O’Sullivan the costs of two successful personal injuries appeals and directed that they be set off against the costs awarded to Anthony and Rita Shannon in the High Court.
The court delivered its ruling on appeal costs on 13 April 2016. The High Court had awarded damages of €131,463 to Mrs O’Sullivan and €91,463 to Mr O’Sullivan. On appeal, those awards were reduced to €66,463 and €41,463 respectively. The plaintiffs’ entitlement to their High Court costs was agreed, with those costs to be taxed if the parties could not agree them.
O’Sullivan argued that costs should follow the event and that her appeal costs should be set off against the plaintiffs’ High Court costs. She also relied on settlement offers made by solicitor’s letters on 16 April 2015. The letters offered €72,001 plus High Court costs to settle Mrs O’Sullivan’s case, and €42,401 plus High Court costs for Mr O’Sullivan’s case. The offers remained open until 29 April 2015 and said the defendant would seek costs incurred after that date if the plaintiffs recovered less on appeal than the amounts offered.
The plaintiffs argued that the court should make no order as to the appeal costs. Their submissions included that the offers were substantially below the High Court awards and below sums required as conditions of a stay; that the offers were unclear about costs incurred between judgment and the letters; and that recent appeal decisions had left them unable to anticipate changes in personal injuries damages awards.
The court rejected those arguments. It said costs would ordinarily follow the event, and O’Sullivan’s success on the appeals supported an award in her favour. It found the letters sufficiently clear about costs during the period before 29 April, and said any residual uncertainty was not why the offers were rejected. The court also held that the earlier High Court tenders and the stay conditions did not determine the appeal-costs issue. It said the cited decisions clarified principles for assessing damages rather than recalibrating awards downwards.
The court acknowledged that its order was harsh on the plaintiffs, but concluded it would not be fair to make the defendant bear her own appeal costs after making offers that could have protected the plaintiffs from that risk. The order concerned costs only; the judgment did not alter the appeal awards described above.