The High Court has given defendants leave to pay money into court in a consolidated case over alleged damage to a Cork nightclub, despite the application coming shortly before trial. The defendants said any payment would be made without admitting liability, leaving liability in dispute.
In a judgment delivered on 20 April 2009, Miss Justice Laffoy said the proceedings were listed for hearing in Dublin on 5 May, with an estimated two-week duration. The plaintiffs, Brian Coughlan and Coates Entertainment Limited, trading as City Limits Comedy and Night Club and Sky Bar, seek damages for losses they allege resulted from damage to their nightclub premises. They allege negligence, breach of duty and/or breach of the rule in Rylands v Fletcher by owners of adjoining premises. The judgment does not determine those claims.
The consolidated proceedings brought together a 2003 action against four defendants and a separate 2006 action against John Donegan. The High Court consolidated the actions in December 2007. The defendants sought permission to make a lodgment after the proceedings had been listed for hearing twice. They said they had agreed on 26 March 2009 to use one legal team and that the plaintiffs’ updated particulars, received on 29 October 2008, allowed them to properly consider a lodgment. Those particulars claimed €2,720,678 in lost profits through August 2007, compared with an earlier figure of €1,278,938 through August 2002.
The plaintiffs argued that the court could refuse the late application following unsuccessful settlement negotiations. Alternatively, they said permission should be conditional on the defendants paying all of the plaintiffs’ costs to date. The judge rejected that proposed condition. She held that the ordinary costs rules would apply: the consequences would depend on whether the plaintiffs accepted the lodgment or proceeded to trial and failed to recover more than its amount. The trial judge would retain discretion to make a different costs order for special cause.
Laffoy distinguished the case from Ely v Dargan, which concerned increasing an existing lodgment after a trial and appeal. She said the present application did not involve topping up an existing lodgment or a retrial with an existing adverse costs order against the plaintiff.
The order grants leave to make a payment into court in satisfaction of the claim. It does not decide liability or damages, and it does not state the amount to be lodged. The judge said she would hear further submissions on whether to set a deadline for the lodgment and for delivery of an amended defence. Any amendment would be limited to stating that money had been paid into court, as required by the rules.