The High Court has ordered Bank of Ireland Mortgage Bank to pay the costs of its unsuccessful appeal against confirmation of a personal insolvency arrangement for Rebecca Forde Egan.
Mr Justice Denis McDonald’s judgment, delivered on 2 March 2020, dealt solely with the costs of the appeal. The court had dismissed the bank’s appeal in a separate judgment on 20 December 2019, affirming the Circuit Court’s order confirming that the arrangement could take effect. The costs order covers the appeal’s written submissions, the October 2019 hearing and the January 2020 costs hearing. If the parties cannot agree the amount, it is to be sent for adjudication by the legal costs adjudicator.
The bank argued that it had pursued a focused appeal on the effect of section 116 of the Personal Insolvency Act and that its submissions raised an issue requiring resolution. It said the court should make no order for costs, taking account of the constructive role an objecting creditor can play in these proceedings. The practitioner argued that the bank’s legal point had already been addressed in earlier decisions and that its written submissions raised additional issues.
The judge said costs in personal insolvency proceedings are discretionary under section 115A(14). He explained that an unsuccessful creditor may avoid a costs order where its participation assists the court, including by raising genuine evidential concerns or a legal issue that needs clarification. But he found that the bank’s argument about the effect of section 116 had, in substance, already been addressed in earlier cases and was not a novel issue requiring resolution. He also concluded that the debtor’s and practitioner’s evidence was comprehensive and that this was not a case where the bank’s submissions justified making no costs order.
The judge distinguished the appeal from the Circuit Court proceedings, where the judge had made no order as to costs. He said he agreed with that first-instance decision: the bank had played a useful role in testing the evidence there, and the practitioner’s detailed evidence was largely responsive to issues raised by the bank. On appeal, however, comprehensive evidence already supported the relief, and the bank could not plausibly claim immunity from costs.