The Court of Appeal has ordered that costs awarded to Kevin and Gillian O’Brien for successfully defending an appeal can be enforced without waiting for the banks’ underlying claim to be decided at a High Court plenary hearing.
In a costs ruling dated 28 September 2020, Ms Justice Faherty said the banks had not shown that the interests of justice required a stay. Justices Donnelly and Haughton agreed with the proposed order.
The appeal itself had been dismissed on all grounds in a judgment delivered on 15 July 2020. The court had provisionally proposed awarding the appeal costs to the O’Briens but staying enforcement until the High Court proceedings concluded. It invited written submissions from both sides on whether a different order should be made.
The O’Briens argued that they had been required to defend the appeal because a successful appeal could have undermined their counterclaim. They said the case was destined for a plenary hearing in any event and that they faced financial constraints and legal costs while awaiting that process.
The banks argued that their claim for more than €2.7 million remained undecided. They said enforcement should wait until the High Court had ruled on the claim, and pointed to the lack of a defence to their statement of claim, delivered on 14 February 2020.
Faherty J identified several reasons for refusing a stay. The O’Briens had been entirely successful in the appeal and had to defend it to protect their counterclaim. The banks had pursued an appeal ground concerning forbearance to sue as consideration for the 2010 facilities, although that ground had not been pleaded in the summary summons or argued in the High Court. The court also noted that the matter was headed for plenary hearing regardless of the appeal’s outcome.
The judge said the appeal was a stand-alone matter: the result of the later plenary trial could not overturn the costs decision. She also considered that the trial was likely to be delayed, including because of extensive discovery, and that the defendants’ relative lack of financial means weighed in favour of allowing costs enforcement. In her view, immediate payment would not disadvantage the established financial institutions.
The ruling concerns enforcement of the appeal costs only. It does not decide the banks’ claim for repayment, which remains to be determined in the High Court.