The High Court ordered Caroline Crotty to pay the costs of a Swedish property company after setting aside service of her personal injury proceedings against it and striking out her claim for want of jurisdiction. The court refused to delay payment until her remaining claim against Scandinavian airline SAS is resolved, but reserved until trial whether SAS should repay those costs.
In a costs ruling delivered on 18 November 2021, Ms Justice Butler said the property company had succeeded in full in its application and was entitled to its costs of the motion and of the proceedings against it. Those proceedings remain in place against SAS.
Crotty argued that no costs order should be made. Alternatively, she sought a stay on payment so she could pursue recoupment from SAS under section 78 of the Courts of Justice Act 1936 if she succeeded against the airline. She relied on O’Byrne letters sent to both defendants in October 2019, which notified them that she might seek recoupment if successful against one defendant but not the other.
The judge said the letters could give a plaintiff some assurance about costs exposure, but did not guarantee that recoupment would be ordered. She noted that the plaintiff had not answered either defendant’s request for particulars identifying where the accident occurred. That location mattered because, under the Montreal Convention, SAS would be strictly liable for injury sustained on board or while disembarking the aircraft.
The judge also distinguished a case where a plaintiff properly sues multiple defendants in the same jurisdiction from one where a defendant is removed because it was not properly sued there. She said SAS had not caused or contributed to the decision to sue the property company in Ireland. SAS had supported the plaintiff’s position on the jurisdiction motion, the judge said, and had not participated adversely to her interests.
The court refused Crotty’s application for her costs against SAS. It made no order on SAS’s costs because the airline had not applied for them. The question of whether SAS must repay the costs Crotty was ordered to pay the property company was reserved to the trial. The judgment does not decide whether Crotty will succeed against SAS or whether any recoupment will ultimately be ordered.