The Court of Appeal has ordered Patrick McFadden to pay Muckno Hotels Limited’s costs of its successful appeal over costs arising from an interlocutory injunction application. It also replaced an earlier High Court award of costs for a costs hearing with an order that neither side pay the other’s costs for that hearing.
The costs judgment, delivered by Mr Justice Robert Haughton on 10 June 2020, followed the court’s 22 April 2020 decision allowing the company’s appeal from a High Court costs order. The appeal judgment had substituted a no-order-as-to-costs outcome for the application for leave for short service, the notice of motion seeking interlocutory relief, and the costs of the interlocutory injunction motion up to 22 June 2017.
The company also sought the costs of the High Court costs hearing on 3 May 2018. The Court of Appeal declined that request. It said the company’s notice of appeal did not specify the order it wanted on those hearing costs, and the company’s request was inconsistent with a letter its solicitors had sent before the hearing proposing that each party bear its own costs. The court ordered no order as to the costs of that hearing, replacing the High Court award to Mr McFadden of “the cost of the application this day”.
On the appeal costs, the company argued that it had won and costs should follow the event. Mr McFadden sought no order as to costs, arguing that the court should depart from the usual rule. His submissions referred to the trial judge’s error, the company’s undertakings during the injunction proceedings, and his financial circumstances after losing his employment. The judgment said the appeal court had already concluded that Mr McFadden sought interlocutory relief prematurely, before clearly requesting undertakings from his employer. It also said the court had found the company obtained instructions to give further undertakings promptly and that delay in confirming them was not culpable.
The court said there was no evidence before it of financial hardship and no good reason to depart from the usual costs rule. It awarded the company the costs of the appeal. The judgment made no determination on whether impecuniosity could ever justify departing from that rule, leaving that question for another occasion. It also noted that a Workplace Relations Commission finding that Mr McFadden’s dismissal was unfair was under appeal, and questioned its relevance to the appeal costs decision.