The Court of Appeal has ordered John Fox and Tomas Lynn to pay Promontoria (Oyster) Designated Activity Company’s costs of one appeal, jointly and severally, after upholding the company’s appeals on a discrete legal issue. The costs are to be adjudicated if the parties cannot agree, and the order is stayed pending the High Court’s final determination of the remaining proceedings.
In a judgment dealing only with costs, delivered on 18 April 2024, Ms Justice Pilkington said the appeals had been heard together on the same issue and the respondents had shared legal representation. The court therefore limited Promontoria to one set of appeal costs.
The underlying appeals concerned whether Promontoria could rely on registered liens as security for further advances made to a debtor after 31 December 2009 under section 73 of the Registration of Deeds and Title Act 2006. The Court of Appeal had upheld Promontoria’s appeals on that issue in an earlier judgment. The costs judgment did not resolve the other matters in the well charging proceedings.
For the Fox proceedings, the court awarded Promontoria its High Court costs relating to the application that led to Simons J’s judgment of 7 March 2022. It excluded costs of Fox’s unsuccessful application to remit the proceedings to the Circuit Court, which had been refused separately and was not appealed. The court also said an application heard on 21 March 2022 fell outside the issue before it; no transcript or copy of the referenced ex tempore judgment had been provided.
For Lynn, the court ordered him to pay Promontoria’s High Court costs relating to the hearing, replacing the earlier order that he recover two-thirds of his costs. The court said those costs, like the other awards, were to be adjudicated if not agreed.
The court declined to make final orders on the well charging reliefs sought by Promontoria. It said outstanding issues in both proceedings could be addressed after remittal to the High Court. The costs orders were stayed pending that court’s final adjudication.
Fox was granted a separate 28-day stay. If he lodges a notice seeking leave to appeal to the Supreme Court within that period, the stay continues until the leave application is determined and, if leave is granted, until the appeal is decided. No stay was sought for Lynn.