The Court of Appeal has awarded costs to the second and third defendants after dismissing Anthony and Anne Elliott’s appeal, finding the defendants were entirely successful in the proceedings. It stayed execution of the costs order for 28 days to allow the plaintiffs to apply to the Supreme Court for leave to appeal.
The ruling, delivered by Ms Justice Faherty on 18 January 2021, addresses costs following the Court of Appeal’s principal judgment of 13 October 2020, which dismissed the plaintiffs’ appeal. The court considered written submissions from the relevant parties on who should bear the appeal costs.
The plaintiffs sought an order that each side bear its own costs. They cited what they described as unusual circumstances surrounding a preliminary High Court hearing on the Statute of Limitations issue, argued it was reasonable to challenge a recently delivered Court of Appeal judgment in Cantrell v AIB, and said they had succeeded on a third issue concerning whether a prima facie negligence case had been made against the third defendant.
The second and third defendants sought their costs, arguing that the appeal had been unsuccessful and there was no basis to depart from the usual approach or the statutory costs framework. The third defendant also relied on an offer made in March 2015, according to his submissions, to bear his own costs to that date if the plaintiffs discontinued the proceedings.
Under section 169(1) of the Legal Services Regulation Act 2015, a party entirely successful in civil proceedings is entitled to costs unless the court orders otherwise, taking account of the case’s circumstances and the parties’ conduct. The court concluded that both defendants met the test of being entirely successful.
The ruling noted that the principal judgment had upheld the trial judge’s refusal to adjourn the High Court hearing, found that the appeal did not encompass a challenge to the refusal of discovery and that the discovery sought was in any event irrelevant to the limitation issue, and found no basis to depart from the trial judge’s reasoning on when the causes of action in tort accrued against the second and third defendants.
Although the appeal court had found the trial judge wrong to determine the third defendant’s non-suit or dismissal application when the preliminary hearing was confined to the limitation issue, Faherty J said that finding did not justify a no-costs order. The court had agreed that the trial judge’s findings on that application were obiter. It found the plaintiffs had not established a basis to deny the defendants their appeal costs, and found nothing in the defendants’ conduct to warrant doing so.
Execution of the costs order is stayed for 28 days. If the plaintiffs apply to the Supreme Court for leave to appeal within that period, the stay continues until the leave application is decided; if leave is granted, it continues until the Supreme Court appeal is determined.