The Supreme Court ordered the Electricity Supply Board (ESB) to pay University College Cork – National University of Ireland’s (UCC) costs of the appeal and the Court of Appeal proceedings. It made no order as to costs for the cross appeal and reserved the High Court costs for the trial judge to consider after deciding issues remitted to that court.
The ruling, delivered by Chief Justice Frank Clarke on 23 July 2021, dealt only with costs remaining after the Court’s earlier judgments on UCC’s appeal and the ESB’s cross appeal. The Court said UCC had succeeded on its appeal: the Court of Appeal had found the ESB was not negligent, but the Supreme Court majority reached a different view.
The ESB argued that the case was in the nature of a test case and that no costs should be ordered against it for the Supreme Court appeal. The Court rejected that argument. It said the test-case principles principally applied where a successful public body benefited from legal clarification, and did not justify requiring an essentially private plaintiff to forgo costs because an unsuccessful public body had gained clarification of the law.
The Court also declined to reduce UCC’s appeal costs because its case had initially been widely framed or included claims the Court did not need to decide. It said the lack of prior Irish decisions on dam operators’ potential negligence liability meant a plaintiff might need to plead broadly. Issues left unresolved because the Court decided the case on other grounds could not, by that fact alone, be treated as unmeritorious.
On the cross appeal, the ESB maintained the High Court finding of some contributory negligence, but failed in its argument that negligence attributed to UCC’s professional advisers could be relied on to fix UCC with that negligence under the 1961 Act. The Court said both parties had been partly successful and made no order as to costs for that appeal. It did not decide the appropriate apportionment of liability at that stage.
The High Court costs were reserved for the trial judge, who is to consider them alongside the outcome of the remitted matters and a new hearing on the quantification of UCC’s losses. The Supreme Court said the judge should assess the appropriate costs order in light of the final decisions, including whether unmeritorious issues materially increased the proceedings’ costs. The original trial judge had awarded UCC 60% of its costs; that award was not made the final order by this ruling.