The High Court has awarded defendants 95% of their costs after ruling that they were successful in motions requiring James Street Hotel Limited to provide security for costs. The award includes fees for both junior and senior counsel, with the costs to be adjudicated if the parties cannot agree.
In a judgment delivered on 20 January 2023, Mr Justice Twomey said the plaintiff had lost both on whether it had to provide security and on its request to phase that security until the end of discovery. The court said it had not granted that request in the earlier decision, James Street Hotel Ltd. v. Mullins Investment Ltd. & oths. [2022] IEHC 549.
The earlier judgment had raised the possibility of phasing security up to mediation, if mediation took place. But the court made no order or direction on that point. It had invited submissions on how such phasing might work if the court later decided to order it. The judge said that discussion did not amount to an issue won by the plaintiff and did not justify reducing the defendants’ costs on that basis.
The defendants sought fees for four groups of legal teams, each comprising junior and senior counsel. Order 52, rule 17(12) of the Rules of the Superior Courts provides that one counsel is allowed for security for costs applications unless the court orders otherwise. The judge said the rule appeared intended to limit expenses in relatively straightforward pre-trial applications, and that departing from it would ordinarily require exceptional circumstances.
The judge found such circumstances in the plaintiff’s position. Its counsel accepted that senior counsel had been appropriately instructed for one defendant and said the plaintiff would not argue that any of the four groups should not have instructed senior counsel. The plaintiff proposed instead that costs for two counsel be allowed with a 5% or 10% reduction.
The court concluded that the plaintiff, the party who would bear the expense, was agreeable to an award covering both senior and junior counsel. It therefore used the rule’s provision allowing the court to order otherwise.
The judge selected a 5% reduction rather than 10%, citing the plaintiff’s late withdrawal during the earlier hearing of an argument that its inability to pay was caused by the defendants. He said this had wasted court time and that costs orders should encourage efficient litigation. The defendants were accordingly awarded 95% of their costs, with a certificate for junior and senior counsel.