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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Yasar v CCC Essen Digital GMBH & Anor, Talibov v CCC Essen Digital GMBH & Anor, Senen v CCC Barcelona Digital Services SLU & Anor [No.2] (Approved) [2024] IEHC 759 (30 October 2024)
URL: http://www.bailii.org/ie/cases/IEHC/2024/2024IEHC759.html
Cite as: [2024] IEHC 759

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APPROVED

AN ARD-CHòIRT

THE HIGH COURT

[2024] IEHC 759

 

Record No. 2022/650P

BETWEEN/

UGUR YASAR

PLAINTIFF

 

-AND-

 

CCC ESSEN DIGITAL GMBH AND FACEBOOK IRELAND LIMITED

DEFENDANTS

 

THE HIGH COURT

Record No. 2022/4639P

BETWEEN/

 

ABUZAR TALIBOV

PLAINTIFF

 

-AND-

 

CCC ESSEN DIGITAL GMBH AND META PLATFORMS IRELAND LIMITED

DEFENDANTS

 

THE HIGH COURT

Record No. 2022/170P

BETWEEN/

 

KYRA SENEN

PLAINTIFF

 

-AND-

 

CCC BARCELONA DIGITAL SERVICES S.L.U. AND FACEBOOK IRELAND LIMITED

DEFENDANTS

 

 

RULING on costs of Mr. Justice Conleth Bradley, delivered on the 30th day of October 2024

Introduction

1.      This is the costs application following my judgment and decision where I refused the PlaintiffÕs discovery application seeking two discrete categories of documentation from CCC Essen, comprising: (i) the contract(s) governing relations between CCC Essen and Meta/Facebook, pursuant to which the Plaintiff was engaged to perform content moderation of the Meta/Facebook platform(s); and (ii) any associated policies and procedures governing the provision/performance of content moderation activities by CCC Essen for Meta/Facebook.

 

The position of the parties

2.      In summary, on behalf of the Plaintiff, Mr. Clarke BL seeks to have the costs of the discovery motions reserved until such time as the jurisdiction motions are heard and its associated costs are addressed, i.e., effectively requesting the postponement of any final determination on the costs of the discovery application to a time when the costs of the jurisdiction challenge will be determined.

 

  1. Counsel submitted that the Plaintiff was not asking at this point in time that the default position Ð where costs follow the event (and here CCC Essen was entirely successful in opposing the discovery applications) Ð be departed from or that consideration be given at this juncture to the factors set out at section 169(1)(a) to (g) of the Legal Services Regulation Act, 2015 [1] and Order 99 of the Rules of the Superior Courts 1986 (ÒRSC 1986Ó). So, whilst reference was made to these provisions (but not yet as to their application), rather than engaging with, and applying, the provisions of the LSR Act 2015 and Order 99 of the Rules of the Superior Courts 1986 (ÒRSC 1986Ó) at this point in time, the gravamen of the PlaintiffÕs application was effectively to postpone consideration of whether, for example, CCC Essen should be granted its costs of successfully opposing the discovery motions until the jurisdiction motions were determined.

 

  1. The postponement would also include, from the PlaintiffÕs perspective, adjourning any consideration of applying the provisions of O. 99, r. 2(5) RSC 1986 and the payment on account of costs pending adjudication in HC125 (in paragraphs 3 and 4) Òthat in all cases where there is no dispute as to the liability for the payment of costs and in any other case which a judge thinks appropriate, an order may be made directing payment of a reasonable sum on account of costs within such period as may be specified by the judge pending the adjudication of such costsÓ. It was submitted on behalf of the Plaintiff that there may be a legitimate dispute as to liability for the costs of the discovery motion but again it was emphasised that the Plaintiff was not making that application now; rather, it was submitted that it would be more appropriately considered at the point in time when the jurisdiction application was heard.

 

  1. It was further contended that the basis on which the Plaintiff sought to adjourn the determination of the costs of the discovery motions to the determination of the jurisdiction motions, rested on the following propositions: first, the underlying claims were predicated on what the Plaintiff viewed as the Òunique and comprehensive degree of controlÓ exercised by Meta over the work performed by employees of CCC Essen (including the Plaintiff) for the ultimate benefit of Meta; second, in the bringing of its application to set aside on the Article 8(1) jurisdiction grounds (i.e., whether the claims are so closely connected that it is expedient to hear them together to avoid the risk of irreconcilable judgments), CCC EssenÕs grounding affidavit (from Ms. Mawson) made the following three claims (which the Plaintiff submits were fundamentally incorrect): (i) there is no direct contact whatsoever between Meta and any frontline content moderation employees of CCC Essen; (ii) CCC Essen provides all training directly to its team members to support them in the work they are hired to do, with no involvement from Meta; and (iii) CCC Essen exclusively supervises the day‑to‑day operation of its employees, with no involvement from Meta, and CCC Essen's frontline content moderation employees have no interaction with Meta. It was submitted that these comprised a consideration of fact and law and it was accepted, insofar as the facts element of the issue was potentially relevant to the future determination of the jurisdiction challenge, the gravamen of the matter may well relate to the extent to which a court is or is not required to determine Ôdisputed factsÕ.

 

6.      Ms. OÕDonnell BL, for CCC Essen, opposed the application made on behalf of the Plaintiff and sought her costs on the basis that CCC Essen had been entirely successful in opposing the discovery application.

 

7.      Further, prior to the costs application which was heard before me on 23rd October 2024, on 22nd October 2024 Arthur Cox (for CCC Essen) wrote to Coleman Legal (for the Plaintiff) stating that it would be seeking its costs in respect of the discovery motions pursuant to section 169 of the Legal Services Regulation Act 2015 and O. 99, r. 2(3) of the RSC 1986. This correspondence also indicated that CCC Essen would be seeking that those costs be paid forthwith pursuant to O. 99, r. 2(5) RSC 1986 and Practice Direction HC125 (also reserving its position in relation to the costs of jurisdiction motions).

 

Discussion & Decision

 

  1. The law on costs is provided for in sections 168 and 169(1) of the LSR Act 2015 [2] and (a recasted) O. 99, rr. 2 & 3 of the Rules of the Superior Courts 1986 (as amended and substituted). [3]

 

  1. Generally, the default position is that costs follow the event where a party has been entirely successful 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 the matters set out at sections 169(1)(a) to (g) of the LSR Act 2015). [4]

 

  1. These provisions have been considered by the Superior Courts in a number of cases, including for example, the Court of Appeal (Whelan, Binchy and Allen JJ.) in Olumide Smith v Cisco Systems Internetworking (Ireland) Limited [2023] IECA 238 where the costs of an interlocutory application was addressed by Whelan J., on behalf of the court, as follows:

Ò13. Thus it is clear, particularly in light of O. 99, r. 2(3), that it is appropriate that this court determine, address and make an appropriate award of costs at the conclusion of an interlocutory application unless Òit is not possible justly to adjudicate upon liability for costsÓ on the basis of the said application. No arguments advanced suggest convincingly that it is otherwise than appropriate to determine the issue of the proper allocation of costs in respect of this interlocutory application.

14. The essential effect of s. 169(1) is that to use common parlance where a party is entirely successful in an application Òcosts follow the eventÓ unless the court orders otherwise. Collins J. in Pembroke Equity Partners Limited v Corrigan and Anor. [2022] IECA 142 made a number of apposite observations which are relevant to the instant case. He noted that the said principle has been considered by ÒÉ the Supreme Court in Godsil v Ireland [2015] IESC 103, [2015] 4 IR 535Ó to be Òthe overriding starting point in any question of contested costsÓ. He further observed at para. 26: -

ÒÉ section 169(1) cannot be read in isolation. It must, firstly, be read with the provisions of section 168 of the 2015 Act. More importantly É it must be read with the provisions of Order 99 RSC, Rule 3(1) which provides in relevant part that:

ÔThe High Court, in considering the awarding of the costs of any action or step in any proceedings É shall have regard to the matters set out in section 169(1) of the 2015 Act, if applicable.ÕÓ (emphasis in original)

15. Collins J. distils down the import of that provision in the context of an interlocutory application as had been held in Daly v Ardstone Capital Limited [2020] IEHC 345, noting:-

Ò27. According to Murray J. in Daly v Ardstone Capital Limited the effect of this provision is that Ôat least in a case where the party seeking costs has been entirely successful - it should lean towards ordering costs to follow the eventÕ. (para. 15(d)). Murray J. was specifically addressing the costs of interlocutory applications. I agree with his analysis of the interaction of section 169(1) and Order 99, Rule 3(1) in this context. I would add that there is nothing surprising about a broad presumption - and that is all it is - that a party who is Ôentirely successfulÕ in an interlocutory application should get their costs.Ó

 

Collins J. makes clear that the interrelationship between the relevant Rule of the RSC and the statutory provisions -

ÒÉ clearly reflects a policy that costs should generally be determined on the determination of interlocutory applications (subject to the important qualification, É that it must be possible to do so ÔjustlyÕ). It appears to me that, if costs are generally to be determined at interlocutory stage, it can only be on the basis of a general rule that the successful party should get their costs.Ó

16. It is to be recalled that in Daly v Ardstone Capital Murray J. clarified in a systematic fashion the principles to be applied in determining costs of an interlocutory application having due regard to sections 168 and 169 of the LSRA and the relevant rules. The following aspects of his judgment are worthy of note and are of particular relevance in the context of this application for costs: -

Ò14. Section 169, in introducing a definitive expression into primary legislation of the rule that costs should be awarded to the successful party, has limited that principle to both the costs of civil proceedings as a whole (as opposed to costs of a step in such proceedings and thus of interlocutory applications, McFadden v Muckross Hotels Limited [2020] IECA 110 at para. 30) and to a party who has been Ôentirely successfulÕ in such proceedings (a phrase the effect of which may not in every case be entirely clear). However, in relation to the application with which I am concerned here [a discovery application], the combined effect of the new O. 99 Rules 2(1) and (3) (replicating respectively the old Order 99 Rules 1(1) and 1(4A)), and of s. 168(2)(c) and (d) and s. 169(1)(a) and (b) (to which Order 99 Rule 3(1) requires regard to be had in determining the costs of any step in proceedings) is to achieve, the same essential consequence as the pre-2015 Act regime.

15. In particular, these provisions combine to present the following principles insofar as costs of an interlocutory application are concerned:

(a) The general discretion of the Court in connection with the ordering of costs is preserved (s.168(1)(a) and O. 99 R. 2(1)).

(b) The Court should, unless it cannot justly do so, make an order for costs upon the disposition of an interlocutory application (O.99 Rule 2(3)).

(c) In so doing, it should Ôhave regard toÕ the provisions of s. 169(1) (O. 99 Rule 3(1)).

(d) Therefore Ð at least in a case where the party seeking costs has been Ôentirely successfulÕ - it should lean towards ordering costs to follow the event (s.169)(1)).

(e) In determining whether to order that costs follow the event the Court should have regard to the non-exhaustive list of matters specified in s. 169(1)(a) - (g) (O. 99 R. 3(1)).

(f) Those matters include the conduct of the parties before and during the proceedings, and whether it was reasonable for a party to raise, pursue or contest one or more issues (s. 169(1)(a) and (b)).ÓÓ

 

  1. O. 99, r. 2 RSC 1986 (as amended) (II. Right to costs) provides inter alia as follows:

Ò2. Subject to the provisions of statute (including sections 168 and 169 of the 2015 Act) and except as otherwise provided by these Rules:

 

(1) The costs of and incidental to every proceeding in the Superior Courts shall be in the discretion of those Courts respectively.

 

(2) No party shall be entitled to recover any costs of or incidental to any proceeding from any other party to such proceeding except under an order or as provided by these Rules.

 

(3) 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.

 

(4) An award of costs shall include any sum payable by the party in favour of whom such an award is made by way of value added tax on such costs, where and only where such party establishes that such sum is not otherwise recoverable.

 

(5) An order may require the payment of an amount in respect of costs forthwith, notwithstanding that the proceedings have not been concluded.Ó

 

  1. O. 99, r. 3(1) RSC 1986 (as amended) provides that Ò[t]he High Court, in considering the awarding of the costs of any action or step in any proceedings, and the Supreme Court and Court of Appeal in considering the awarding of the costs of any appeal or step in any appeal, in respect of a claim or counterclaim, shall have regard to the matters set out in section 169(1) of the 2015 Act, where applicableÓ.

 

  1. Accordingly, if a court is in a position to do so, it should deal with the costs of an interlocutory matter, such as discovery, rather than reserving those costs to the trial of the action, which in this case is the further interlocutory application in relation to the jurisdiction challenge.

 

  1. In this application, which is an interlocutory application, I am of the view that it is possible justly to adjudicate upon liability for costs of the discovery motion.

 

  1. Notwithstanding the arguments of Mr. Clarke BL which in essence are to effectively postpone the issue of the discovery costs (and pro tanto consideration of the non-exhaustive list of matters specified in s. 169(1)(a) to (g) and O. 99 r. 3(1)) RSC 1986, to the time when consideration is being given to the jurisdiction application (which is a further interlocutory application), for the reasons set out in the principal judgment I refused the discovery sought in this case and in those circumstances CCC Essen, as the party who was Ôentirely successfulÕ in this interlocutory application should get their costs.

 

  1. To recap, in this discovery application, the Plaintiff sought to confirm whether or not CCC Essen enjoys absolute autonomy in its engagement of the Plaintiff as a content moderator in order to facilitate his response to certain matters in CCC EssenÕs application for an order pursuant to O. 12, r. 26 RSC 1986 seeking to set aside service of the notice of the proceedings upon it, on the grounds that this court does not have jurisdiction to hear and determine the PlaintiffÕs claim against CCC Essen under the terms of Article 8(1) of Brussels I (recast). However, notwithstanding their association, the determination of the costs of the discovery application does not need to await the hearing and determination of the jurisdiction question.

 

  1. Ultimately, I determined that the discovery which was sought (described above) was not necessary for the fair disposal of the jurisdiction issue where, subject to a precise date to be fixed, is likely to be heard in January/February 2025. The Plaintiff was therefore unsuccessful in both of the categories of discovery sought. CCC Essen is therefore entitled to the costs of the discovery motion and I do not believe, having regard, inter alia, to s. 169(1)(a) to (g) and O. 99, r. 3(1)) RSC 1986 (footnoted above), that there is a basis upon which to reserve or postpone that decision to a later date so as to coincide with the costs of the jurisdiction issue.

 

  1. As mentioned, in its letter of 22nd October 2024, Arthur Cox wrote to Coleman Legal on behalf of the Plaintiff and stated inter alia that at this costs hearing they Òwill be seeking our clientsÕ costs in respect of the Discovery Motions pursuant to Section 169 of the Legal Services Regulation Act 2015 and Order 99, Rule 2(3) of the Rules of the Superior Courts (ÔRSCÕ). Further, we will be seeking an order that those costs be paid forthwith pursuant to Order 99, Rule 2(5) RSC and Practice Direction HC125.Ó In the circumstances of this application, I consider that the provisions of O. 99, r. 2(5) RSC 1986 are also applicable.

 

Proposed Order

 

  1. Accordingly, I shall make an order granting CCC Essen and CCC Barcelona their costs as against the Plaintiffs in the three discovery applications in these cases, including reserved costs, if any, such costs to be adjudicated upon in default of agreement by the Office of the Legal Costs Adjudicator.

 

  1. Further, I shall also make an order pursuant to O. 99, r. 2(5) RSC 1986 directing that the costs of one of the three discovery motions, namely the case of Yasar v CCC Essen Digital GMBH & Ors (Record No. 2022/650P) be paid to the First Named Defendant by the Plaintiff as soon as those costs have been determined (whether by agreement or by adjudication by the Office of the Legal Costs Adjudicator).

 

CONLETH BRADLEY

Wednesday 30th October 2024

 

 

 

 

 



[1] The LSR Act 2015.

[2] Section 168 of the LSR Act 2015 provides the power to award legal costs.

[3] S.I. 584 of 2019. The operative provisions of the LSR Act 2015 came into force on 7th October 2019 and the new provisions of O. 99 RSC 1986 took effect from 3rd December 2019.

[4] Section 169(1) of the LSR Act 2015 inter alia provides that 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 for a party to raise, pursue or contest one or more issues in the proceedings, (c) the manner in which the parties conducted all or any part of their cases, (d) whether a successful party exaggerated his or her claim, (e) whether a party made a payment into court and the date of that payment, (f) whether a party made an offer to settle the matter the subject of the proceedings, and if so, the date, terms and circumstances of that offer, and (g) where the parties were invited by the court to settle the claim (whether by mediation or otherwise) and the court considers that one or more than one of the parties was or were unreasonable in refusing to engage in the settlement discussions or in mediation.

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