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.
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
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
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
Proposed Order
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.