The High Court has ordered BUPA Ireland Limited and BUPA Insurance to pay 75% of the respondents’ recoverable costs for the High Court stage of a dispute over damages linked to the 2003 Scheme.
In a ruling delivered on 30 April 2013, Mr Justice Cooke considered costs arising from a seven-day hearing in January and February 2012 and related steps after the Supreme Court remitted liability and damages issues to the High Court. The costs ruling concerned that remitted stage only. Costs incurred earlier in the litigation had already been dealt with by a Supreme Court order made on 17 December 2008, which awarded those costs to the applicants.
The court had ruled on 7 March 2013 that the applicants’ claim for damages could not be maintained. The respondents sought their costs. The applicants opposed that request and sought their own costs, or at least part of them, from the second named respondent, the Minister for Health and Children. Alternatively, they argued that any award to the respondents should be reduced to account for issues on which they had succeeded.
Justice Cooke said the general rule was that costs follow the event, while the court retained discretion to depart from it. He rejected the applicants’ request for costs, finding that this was not an exceptional case warranting an award to the unsuccessful parties. The remitted damages issues, considered separately from the wider litigation, were not public-interest issues or a test case. The court also found no unsatisfactory conduct by the respondents.
One significant issue had gone against the respondents: their argument that the applicants should not be allowed to reopen and retry issues addressed in the earlier proceedings. The court noted that this argument concerned the effect of the Supreme Court judgment on findings by Mr Justice McKechnie about the impact of the 2003 Scheme. It had occupied substantial hearing time and influenced the court’s analysis. The court said the respondents could not be criticised for advancing it, but considered its importance relevant to a fair allocation of costs.
The order was for the respondents to recover 75% of their costs, with the recoverable amount to be determined on taxation. The ruling did not award costs to BUPA.