THE COURT OF APPEAL
UNAPPROVED
NO REDACTIONS NEEDED
[2025] IECA 99
Record Number: 2024/68
High Court Record Number: 4986P/2022
Woulfe J.
Noonan J.
Burns J.
BETWEEN/
STEPHEN BEATTY
PLAINTIFF/APPELLANT
-AND-
ROBERT BEATTY AND FRANK BEATTY
(As representatives of the estate of Walter Beatty for the purposes of the proceedings herein pending the appointment of a legal personal representative for his said estate)
DEFENDANT/RESPONDENT
COSTS RULING of Mr. Justice Noonan delivered on the 14th day of May, 2025
1. The principal judgment in these proceedings was delivered on 19th March 2025 ([2025] IECA 64). The proceedings have since been reconstituted. The Court allowed the plaintiff's appeal and dismissed the defendant's motion. At para. 143 of the principal judgment, the Court indicated a provisional view that as the plaintiff had been entirely successful in the appeal, he should be entitled to his costs both in this Court and the High Court. The defendant was given liberty to contend for an alternative costs order by written submission. Such submission has been delivered and replied to.
2. In summary, the defendant contends that this Court should reserve the costs both in this Court and the High Court until the final determination of the proceedings. Alternatively it is submitted that the costs should be costs in the cause.
3. The defendant places reliance on s. 169(1) of the Legal Services Regulation Act 2015:-
" A party who is entirely successful in civil proceedings is entitled to an award of costs against a party who is not successful in those proceedings, unless the court orders otherwise, having regard to the particular nature and circumstances of the case, and the conduct of the proceedings by the parties, including -
(a) conduct before and during the proceedings,
(b) whether it was reasonable to raise, pursue or contest one or more issues in the proceedings.
(c) ..." (defendant's emphasis).
4. The defendant also relies on O.99, r.2(3) of the RSC:-
"Subject to the provisions of statute (including sections 168 and 169 of the 2015 Act) and except as otherwise provided by these Rules:
...
The High Court, the Court of Appeal or the Supreme Court, upon determining any interlocutory application, shall make an award of costs save where it is not possible justly to adjudicate upon liability for costs on the basis of the interlocutory application." (defendant's emphasis).
5. The defendant places emphasis on the fact that this was an interlocutory application wherein a final order was unsuccessfully sought. The defendant refers to a number of judgments which concern interlocutory injunctions where costs were reserved including Paddy Burke (Builders) Ltd. v. Tullyvaraga Management Company Limited [2020] IEHC 199 citing with approval the judgment in O'Dea v. Dublin City Council [ 2011] IEHC 100 which adopted the dicta of Keane J. in the Supreme Court in Dubcap v. Microcrop Limited (Unreported, Supreme Court, 9 December 1997). Keane J. observed that in interlocutory injunction applications, the normal procedure is to reserve the costs to the trial judge because there will often be matters that can only be resolved at trial which were not available at the interlocutory stage and might well cast matters in an entirely different light. Thus whether it was reasonable to have brought or contested an interlocutory injunction application may only be capable of resolution with the hindsight of a full trial of the issues.
6. The defendant seeks to draw an analogy with the present motion, which was brought on the basis that a fair trial was no longer possible due to the passage of time and its effects. It is true to say that this Court took the view that it will ultimately be a matter for the trial judge to determine that issue having heard all the evidence. The defendant's argument goes that is therefore not possible at this point to determine whether it was "reasonable" within the meaning of s. 169 for the plaintiff to have contested this application.
7. In response, the plaintiff places significant reliance on the costs judgment in Irish Bank Resolution Corporation Limited (In special liquidation) & Anor. v. Fingleton [2025] IESC 8. That judgment was the Supreme Court's ruling on costs following the main judgment to which extensive reference is made in the principal judgment herein. That case, it is submitted by the plaintiff, is a close analogue of the present and the costs result should be the same.
8. As I think is clear from O. 99, r.2(3), the starting point is that the Court should make a costs order in every interlocutory application unless it is not possible "justly" to do so. The default position is that set out in s. 169 which is that the party who is entirely successful has a prima facie right to his costs unless there are countervailing factors of the kind identified in the section. The arguments raised by the defendant here, as submitted by the plaintiff, bear a striking similarity to those raised in Fingleton. The same application was made by the defendant/appellant in that case, namely that the costs should be either reserved or made costs in the cause. The defendant argued that if he succeeded in defending the proceedings on their merits by demonstrating at trial that they are beyond the reach of a fair trial, it would be unjust for him to bear the costs of his own unsuccessful motion to dismiss.
9. The Supreme Court confirmed that the default position is that the court should normally determine the costs of any interlocutory application and the successful party would normally be entitled to their costs unless it is not possible justly to adjudicate upon the issue. The Supreme Court noted in that regard (at para. 11)
"11. The Court is of the view that the appellant has failed to establish that there are any exceptional circumstances to justify a departure from the default position in this case. As regards the appellant's first argument that he may succeed in defending the proceedings on their merits, this argument runs contrary to the rationale for providing in the Rules that the Court should normally make an order for costs upon determining any interlocutory application, and the Court accepts the respondents' submission that this argument is one that could be advanced by the unsuccessful party in any interlocutory application. In the present case the interlocutory issue was a self-standing discrete issue, and therefore it should be treated as such for costs purposes, unless there are some exceptional circumstances.
12. As regards the appellant's argument that he may succeed at the trial of the action in establishing that there is an intolerable risk of an unfair trial, the court is of the view that this argument is also misconceived. It has been acknowledged in the judgments appealed by the appellant that he might raise this issue at the trial of the action, and the respondents also accepted this proposition and relied upon it in this appeal."
10. It seems to me that these observations by the Supreme Court govern this application. The defendant has advanced no meaningful basis upon which Fingleton can be distinguished. As the Supreme Court held, the default position should only be departed from in exceptional circumstances, and none arise to my mind in this application. The discrete issue here, as in Fingleton, was whether the requirements of justice were such that the case should be dismissed now without a hearing on the merits. The determination of that issue is free standing and unrelated to the ultimate outcome of the proceedings.
11. I am, therefore, satisfied that my provisional view as to costs expressed in the principal judgment is correct. Accordingly the plaintiff is entitled to the costs of the appeal and of the motion in the High Court.
12. As this ruling is delivered electronically, Woulfe and Burns JJ. have authorised me to record their agreement with it.