The Court of Appeal has ordered Anthony Fitzpatrick to pay AIG Europe Limited’s costs after dismissing his appeal against a refusal to strike out proceedings over an unpaid €250,000 contribution to litigation costs.
The costs judgment, delivered by Ms Justice Máire Whelan on 30 July 2020, followed the court’s earlier dismissal of the appeal on 9 April. The appeal had challenged a High Court order refusing Fitzpatrick’s application to dismiss the proceedings for inordinate and inexcusable delay or want of prosecution, and to set aside the renewal of a summary summons.
AIG’s predecessor, Chartis Europe Limited, had insured Fitzpatrick professionally. The judgment records that he agreed in January 2012 to pay €250,000 within six weeks of 23 February 2012 towards the compromise of separate High Court litigation. The payment was not made. AIG issued a summary summons in September 2012 but did not initially achieve personal service. The summons was renewed by court order in January 2015, and substituted service was effected the following month.
Fitzpatrick argued that no steps were taken between February 2015 and May 2017, and asked the Court of Appeal to make no order as to costs. He relied on alleged delay by AIG and said he had tried to address the matter through a representative of the insurer. AIG argued that costs should follow the outcome of the appeal.
Whelan said the different costs rules raised by the parties would not produce a materially different result in this case. She found that Fitzpatrick had identified no basis under section 169 of the Legal Services Regulation Act 2015 to depart from the usual rule that costs follow the event.
The judge referred to affidavit evidence describing repeated attempts to serve Fitzpatrick in Limerick City and Sixmilebridge, County Clare. She said his affidavit did not satisfactorily address that evidence, including accounts of attempts at his place of business. Although Fitzpatrick said he could not recall receiving the summons before May 2017, he did not contradict the service evidence or meaningfully contest the record of attempted service. The judgment also said the evidence did not support his claim that he had tried to resolve the matter through the insurer’s representative.
The Court of Appeal confirmed the dismissal of the appeal and awarded AIG its costs. The amount is to be adjudicated if the parties do not agree. The judgment notes that a separate €250,000 judgment against Fitzpatrick was subsequently obtained and was subject to a stay; it does not determine that stay in this costs ruling.