The High Court has ordered Pat McCarthy to pay Gerry Twomey’s reasonable legal costs after dismissing McCarthy’s personal injuries action. The costs are to be adjudicated if the parties cannot agree on the amount.
In a ruling delivered on 10 December 2019, Mr Justice David Keane said the central issue at trial was whether McCarthy’s significant injury resulted from a breach of duty by Twomey for which Twomey was liable in damages. The court had resolved that issue in Twomey’s favour in an earlier judgment on 25 October 2019, dismissing the action.
The costs ruling followed submissions made by the parties on 3 December. Twomey’s barrister argued that the usual rule applied: costs should follow the outcome, and the successful defendant should receive them. McCarthy’s barrister sought no order for costs, arguing that McCarthy had succeeded on several issues and that his personal circumstances also justified departing from the usual rule.
Those issues included whether construction safety duties applied to Twomey, whether there had been delay in bringing the proceedings, whether an adverse inference should be drawn from the failure to serve a notice of claim within the statutory time, and whether the builder was a concurrent wrongdoer. The court said those matters were barely touched on in evidence or argument and had not materially added to the costs of the proceedings. It therefore treated the resolution of the central liability dispute as the event that determined costs.
McCarthy’s barrister also relied on the earlier judgment’s finding that McCarthy was a credible and honest witness and had suffered a traumatic accident leaving him with permanent disability in his right eye. The court was also asked to take account of his being a married man in his sixties with four adult children. The judge said those factors were not enough to deprive Twomey, who had successfully defended the proceedings, of his costs.
The court ordered McCarthy to pay Twomey’s reasonable costs. It did not specify a sum; the costs are to be adjudicated in default of agreement.