The High Court awarded costs of competing discovery motions to both sides in litigation involving IBB Internet Services Limited, Irish Broadband Internet Services Limited trading as Imagine Networks, Imagine Communications Group Limited and Motorola Limited. It rejected Motorola’s request to make the costs costs in the cause, meaning they would be dealt with later in the main proceedings.
Mr Justice Barrett delivered the costs judgment on 1 May 2015, after considering written submissions and replies without an oral hearing. The applications followed the court’s 3 February 2015 judgment on the discovery motions, which had been preceded by four days of hearings.
The plaintiffs sought the costs of their own discovery motion and Motorola’s motion. Motorola argued that the costs of both motions should be costs in the cause; alternatively, it sought the costs of its own motion.
The court held that the relevant “event” for costs purposes was the scope of discovery ordered. It rejected Motorola’s contention that the varying outcomes across numerous discovery categories made it impossible to identify a winner. The judge said that treating complexity as a reason to defer costs could encourage parties to seek excessive discovery and then compromise their requests in a way that frustrated costs decisions.
On the plaintiffs’ motion, the court said the plaintiffs had succeeded on the overwhelming majority of the contested points. It noted that Motorola’s arguments about discovery of documents concerning representations were rejected, as were challenges to several other categories, including business plans and corporate structure. The costs of the plaintiffs’ motion had not been materially increased by their relatively few unsuccessful arguments.
Motorola was, in turn, “substantively successful” on its own motion: most of its requested categories were agreed or ordered in a form satisfactory to it. The court acknowledged that the plaintiffs had proper grounds to resist some requests and had succeeded wholly or partly on most contested instances. But it found no principled distinction between the outcomes of the two motions that would justify denying Motorola its costs.
The court ordered the plaintiffs to receive the costs of their discovery motion and Motorola to receive the costs of its. It did not determine the underlying claims in the litigation; the judgment addressed only costs arising from the discovery applications.