The High Court has made no order as to costs after the plaintiff and defendant each succeeded on distinct parts of an application for further and better discovery.
Mr Justice Murray delivered the costs judgment on 29 June 2020 in John Daly’s proceedings against Ardstone Capital Limited. The earlier discovery application had resulted in some additional disclosure and an affidavit from the defendant, but the plaintiff had not obtained all the relief he sought. The judge had addressed that earlier application in [2020] IEHC 200.
The plaintiff sought the costs of that application, arguing that he had obtained some of the requested relief. The defendant asked for its costs, or a substantial part of them, or alternatively for costs to be reserved to the trial.
The judge identified three issues on which the plaintiff had succeeded: disclosure of a spreadsheet exhibited to an affidavit and the email by which it was sent; disclosure of other documents relating to an alleged entitlement or promise of the kind claimed by the plaintiff; and disclosure of residential investment presentations that included the plaintiff’s profile. The defendant was also required to swear a further affidavit addressing the deletion of the plaintiff’s emails after his employment ended.
The plaintiff had failed to establish grounds for further disclosure in three other areas: promotes allegedly promised or paid to employees in the same category; residential investor profiles; and documents concerning certain property acquisition, development or fund generation projects outside the AVP or ARP. The judgment does not decide the underlying claim about any alleged entitlement or promise.
The judge said the successful and unsuccessful issues occupied roughly equal amounts of hearing time. He also considered the defendant’s failure to address the deleted emails through an appropriate affidavit before the hearing, alongside the plaintiff’s role in the need for litigation over a discovery category whose wording lacked clarity.
The judge concluded that neither side was the real winner. He considered the costs regime applicable to interlocutory applications, including the transition between the former rules and provisions introduced under the Legal Services Regulation Act 2015, but did not decide how the new provisions applied to an application issued before they took effect. He found the outcome on costs was the same under the principles he applied: no order as to costs.
The judgment also corrected a date in the proposed order in the earlier discovery judgment. The date was changed from 25 May 2018 to 15 March 2018.