The High Court has awarded a plaintiff the costs of six days of an eight-day personal injuries hearing, while ordering him to pay the defendant’s costs for two days spent dealing with an unsuccessful loss of earnings claim.
Mr Justice Barr made the costs order after the plaintiff, Michael Dardis, had been awarded €84,688.52 in damages against Sergejs Poplovka for injuries arising from a road traffic accident on 21 October 2009. The damages judgment was delivered on 1 March 2017. The costs judgment was delivered on 28 April 2017.
The defendant had made a tender of €60,001 on 17 January 2017, the day before the hearing began. Because the plaintiff’s damages award exceeded the tender, the judge said he was prima facie entitled to his costs. The defendant argued, however, that the plaintiff should not recover costs linked to a €620,042 claim for past and future loss of earnings, and that the defendant should receive costs for the hearing time spent on that issue.
The court had rejected the earnings claim as “totally unrealistic”, finding that the medical evidence did not support the claim that the plaintiff would never be fit for gainful employment, that he had not tried non-manual work for which he was qualified, and that the basis for the calculations was not accepted. It awarded €20,000 for loss of opportunity on the job market.
Mr Justice Barr set out that costs generally follow the event, but a court can depart from that rule where justice requires. In a personal injuries case, a plaintiff who advances a distinct, unsustainable claim may lose costs for the hearing time and witnesses devoted to it if the issue prolonged the trial. The defendant must show definite additional expense attributable to that issue.
The defendant sought costs for six extra days, saying the case had been expected to take two days but ran for eight. The judge found that a discovery motion had also taken time and its costs had already been awarded to the plaintiff. Reviewing his notes, he concluded the earnings claim had extended the hearing by about two days, not six.
The plaintiff was awarded the costs of the discovery motion and costs for six hearing days. He was refused the costs of accountant Mr Stephens and actuary Mr Tennant, both retained in connection with the earnings claim. The defendant was awarded costs for two hearing days and reimbursement of fees paid to his accountant, Mr Grant. Both sides’ costs are to be taxed if not agreed, and the defendant may set off his costs against those payable to the plaintiff once the amounts are determined.