The Court of Appeal has awarded Patricia Sweeney the costs of an appeal after ruling that Atlantic Troy Limited’s settlement offers did not displace the court’s provisional costs view.
In a costs ruling delivered on 15 January 2024, Mr Justice Noonan, with agreement from Justices Binchy and Meenan, said Sweeney was entitled to the appeal costs, including the costs of written submissions on the costs application. The ruling did not award costs on the cross-appeal.
The court had dismissed both Atlantic Troy’s appeal and Sweeney’s cross-appeal in its principal judgment. It had proposed that Sweeney receive the costs of the appeal, with no order for costs on the cross-appeal, and invited written submissions from either side seeking a different order.
Atlantic Troy argued that it should receive the costs of both matters. It said its counsel had made a verbal settlement offer on 26 September 2023: to pay the High Court award and Sweeney’s High Court costs, in exchange for both the appeal and cross-appeal being withdrawn. The company said the offer was later documented in a letter dated 17 October 2023, marked “without prejudice save as to costs”.
Mr Justice Noonan said the verbal offer between counsel was protected by implicit without-prejudice privilege and had to be disregarded when allocating costs. He said that, absent a specific provision in legislation or court rules, an offer intended to be relied on in a costs application had to take the form of a Calderbank letter.
The written offer could be considered, but the judge said it came 14 days before the appeal hearing, when most or all of the appeal costs were likely already incurred. More significantly, it did not offer to pay Sweeney’s appeal costs up to the date of the offer.
The judge said accepting the offer would have left Sweeney responsible for her own appeal costs, substantially reducing the amount she received under the High Court award. The appeal judgment left her in a substantially better position than accepting the offer would have done, he said. He concluded that the written offer had no effect on the costs decision and that Atlantic Troy had not displaced the court’s provisional view.