The High Court has ordered Carol and John Morrissey to pay the costs of their unsuccessful discovery application to both the NAMA defendants and the State defendants. The costs are to be taxed in default of agreement, so the judgment did not set a final amount payable.
Mr Justice David Keane delivered the costs judgment on 19 July 2017. The discovery application had been dismissed in a judgment on 24 March 2017. The judge said the parties agreed the proceedings were subject to section 189 of the National Asset Management Agency Act 2009, which governs costs of interlocutory applications in such cases.
The NAMA defendants sought their costs because the application had failed. The Morrisseys sought costs against those defendants or, alternatively, an order that each side bear its own costs. They argued, among other things, that the case had a public interest dimension, that voluntary discovery had been unreasonable or deficient, and that additional documents were offered only after they brought the application.
The judge rejected those submissions. He described the action as a private law claim for damages, alongside a NAMA counterclaim for summary judgment of €32,516,390.55 plus interest from 16 April 2014. He found no exceptional public interest basis to depart from the usual approach that costs follow the event. He also said he could not revisit the merits of the discovery decision at the costs hearing because he was functus officio on that issue.
The Morrisseys had also challenged the application of section 189 on constitutional and other legal grounds. The judge considered that challenge premature in the circumstances. He said there was no evidence before him about their means or any intention by a defendant to seek restrictions on the continuation of proceedings if costs were unpaid. He did not determine the constitutional validity of section 189(2).
A NAMA costs accountant had assessed those defendants’ party-and-party costs at €89,998.83. The State defendants had not provided a bill or accountant’s report. The court ultimately ordered costs for each defendant to be taxed if not agreed, rather than measuring them at the hearing. The judge said it was unnecessary to decide what the orders meant for the possible application of section 189(2).