The High Court made no order as to costs after proceedings concerning loans originally made by Anglo Irish Bank to Patrick McKillen became moot when special liquidators sold the loans to him.
In a judgment delivered on 20 March 2014, Mr Justice Paul Gilligan said the main dispute was between McKillen and defendants associated with the Barclay family over control of a substantial sum of money. The special liquidators had proposed selling the loan to the highest bidder. The judge said McKillen succeeded in purchasing his own loans, resolving the issue at the centre of the proceedings. The judgment did not decide the underlying merits of the dispute.
The Barclay associated defendants consented to an order that each side bear its own costs to date. A separate costs dispute concerned the special liquidators, who had delivered a defence and complied with a discovery order. Their costs of discovery had been reserved to the trial judge.
For the special liquidators, counsel argued that they should not be left out of pocket for costs incurred preparing discovery material, and sought either their full costs or at least the costs of discovery. The judge accepted that they were a necessary and proper party, but said the case had become moot because of the liquidators’ decision to sell the loans. McKillen was not seeking costs from any party.
The judge considered principles for costs in moot proceedings, including whether mootness resulted from an external event or a party’s unilateral action. He concluded that the sale was not attributable to one party’s unilateral action: all were involved in the events that rendered the case moot. He also noted that the rules entitled a non-party ordered to make discovery to its discovery costs, and found no basis to distinguish the liquidators’ costs from those of other third parties.
The court ordered, by consent, no order as to costs between McKillen and the Barclay associated defendants, and no order as to costs between McKillen and the first three named defendants. The judgment addressed costs; it did not make a finding on the substantive claims.