The High Court awarded costs to a defendant whose application struck out a plaintiff’s plenary action, while limiting the hearing costs to the level associated with a preliminary motion on justiciability.
Ms Justice Butler’s costs ruling followed her 21 January 2022 decision to strike out the proceedings. She had found that they disclosed no reasonable or justiciable cause of action and that allegations of professional misconduct against the defendant fell within the exclusive remit of the Legal Services Regulatory Authority. The two-day trial listing did not proceed.
The defendant sought all costs, relying on the principle that costs should follow the event and arguing that he had succeeded in full. The plaintiff argued that the defendant should receive no costs, or should not recover additional expense arising because he had not sought an earlier ruling on whether the claim was justiciable. The plaintiff pointed to subpoenas issued to prepare for trial and five motions by subpoenaed people seeking to have them set aside.
The judge accepted that the defendant was entitled in principle to costs because he had succeeded in having the action struck out. She considered separately what costs should be included. A preliminary motion to determine a discrete legal issue would generally cost less than a plenary trial, she said, and the defendant had not identified a specific reason why a less costly procedure would have caused delay or otherwise been unsuitable. His intention had been to prevent the action proceeding to trial, an outcome that could have been pursued through a preliminary application.
The judge also noted that the subpoenas would not have issued had the case not remained listed for trial. She said it was not unreasonable for the plaintiff to prepare for an imminent hearing. The defendant’s submission that the subpoenas were inappropriate had not been determined, and the judge made no finding on that issue. She said she attributed no adverse motive to the defendant.
The court ordered costs in the defendant’s favour, to be adjudicated if the parties could not agree. The order covers costs of and incidental to the proceedings against him, but excludes plenary trial costs. The hearing costs are to be adjudicated as the costs of a motion listed for a full day in the Chancery list to determine justiciability as a preliminary issue. The court made no order on the costs of the five subpoena motions.