The High Court has ordered Start Mortgages DAC to pay the costs of proceedings dismissed for inordinate and inexcusable delay, including the second defendant’s costs of defending the claim. The order excludes the costs of making discovery because no Affidavit of Discovery was filed.
In a judgment delivered on 15 May 2020, Ms Justice Power considered the costs after the court had dismissed the proceedings on 7 April 2020. The case had been issued in 2010. The second named defendant, Joseph Harris, had brought the motion to dismiss for want of prosecution.
The court had found that the delay caused serious prejudice to the applicant and created a substantial risk of unfairness if the matter went to trial. The May judgment addressed costs arising from that decision; it did not revisit the dismissal.
Harris’s solicitors sought the costs of the motion and proceedings, along with reserved and discovery-related costs. The bank did not object to a costs order in his favour, but argued that he should not receive the costs of making discovery because he had not provided an Affidavit of Discovery.
The applicant’s solicitors argued that costs should follow the event. They also submitted that the bank had ignored a pre-motion request to discontinue, contested the dismissal motion vigorously and had not candidly disclosed an internal memo. The bank disputed the allegation about the memo and said it did not establish that proceedings had deliberately been paused.
The judge said the general starting point was that costs follow the event, subject to the court’s discretion. She noted that the applicant had engaged with the bank’s claim, obtained solicitors, defended a summary judgment motion and filed a full defence after the case moved to a plenary hearing.
An order for discovery had been made against him on 11 November 2013. An internal bank memo dated 18 November 2013, which the applicant exhibited, recorded that after a call from his solicitor the bank intended to review the matter and would respond by the end of that month. The judgment said the proceedings then went into abeyance and the bank took no further step before the dismissal motion.
The judge awarded the applicant the costs of the dismissal motion and of defending the proceedings, saying he had been brought into costly litigation that was later shelved. She also awarded his costs of responding to the discovery motion, but not the costs of making discovery, as no Affidavit of Discovery had been filed. The costs are to be adjudicated if the parties cannot agree.