AN ARD-CHÚIRT
THE HIGH COURT
[2025] IEHC 227
[Record No. 2018/3516P]
BETWEEN
ZSOLT REZMUVES
PLAINTIFF
AND
PATRICK SIMONS
DEFENDANT
Ex Tempore Judgment delivered at 4:10p.m. in Court 24 on 12 February 2025 by Mr. Justice Tony O'Connor
1. This judgment determines the issue of costs for the plaintiff's claim arising from a road traffic accident for which the defendant accepted liability. The judgment delivered on 16 October 2024 having neutral citation 2024 IEHC 592 ("the main judgment") identified the accident as "the third collision". That collision occurred on 10 March 2017.
2. The Court awarded a total of €53,050 for the injuries sustained by the plaintiff in the three accidents. As explained in paras. 1 and 3 of the main judgment, the defendants in the three sets of proceedings had advised the Court on 13 December 2023 that it need not apportion liability among the defendants because the defendants had come to an arrangement which did not therefore require the Court to appoint and attribute damages to each of the three accidents.
3. There was a protracted trial of the three sets of proceedings together. Ultimately most of the significant special damages claimed were rejected by this Court.
4. In these proceedings the defendant made a tender offer on 13 March 2019 for €30,555. On the day after the commencement of the trial, the solicitors for the defendant made another tender offer for €50,001. The trial was actually commenced by the plaintiff himself without legal representation on 29 November 2022.
5. It is clear from the judgment of the Supreme Court in Little v. The Chief Appeals Officer, Social Welfare Office & Minister for Social Protection delivered on 19 November 2024 [2024] IESC 53 that the power of the Court to award costs in civil proceedings derives from statute only.
6. The statutory provisions relevant to the plaintiff's application for costs and by each of the parties in the three sets of proceedings are:-
(1) Section 168(1) and (2) with s. 169(1) of the Legal Services Regulation Act 2015 ("The LSRA").
(2) Order 22 of the Rules of the Superior Courts.
(3) Order 99(2) and (3) of the Rules of the Superior Courts.
7. In Word Perfect Translation Services Limited v. The Minister for Public Expenditure & Reform [2023] IECA 189 Donnelly J. for the Court of Appeal on 27 July 2023 analysed the application of s. 169(1) of the LSRA. The nineth bullet point of para. 94 is quite apposite in this application;
"It must also be borne in mind that the costs hearing ought not to be an exercise in nit-picking and a broad-brush-stroke approach must be taken. If it is not, there is a danger that costs applications will spiral out of control and have implications for the overall administration of justice. A court, having heard the trial and adjudicated upon the case, will be in an excellent position to make the decision based upon what the court has seen and heard. If necessary, admissible inter partes correspondence can be handed into court."
8. As a result of the agreement in December 2023 between the defendants referred to in the main judgment, Mr. Simons will be directed to pay the sum of €13,262.50 to the plaintiff according to the Order to be perfected following delivery of this judgment and the determination of any other applications to be heard today.
9. Whatever way one views the key events, the plaintiff has failed to be awarded damages in excess of the offer of compensation tendered in accordance with O. 22 of the RSC on 13 March 2019. Order 22(6)(3) provides that the defendant "shall be entitled to the costs of the action from the time such [tender] was made".
10. Counsel for the plaintiff submits that the special cause in this application was the necessity to have the proceedings heard together. It was previous counsel for the plaintiff who had applied for that approach to be adopted. Although Mr. Simons (the defendant here) and the defendants in the other proceedings may not have objected to that approach, their rights to litigate the issue of damages by each of them were nevertheless preserved; so I find that no special cause has been shown to depart from that rule. Therefore, the plaintiff is entitled to the costs on the Circuit Court scale for a reasonable period after the tender to accept same; that would be 28 days and was 10 April 2019. The ultimate sum was just within the jurisdiction of the District Court but the Court finds that it was reasonable for the plaintiff to have started proceedings in the Circuit Court.
11. The Court determines the claim of the defendant for costs later in this judgment.
Differential costs order
12. Peart J. in Moin v. Sicika & O'Malley v McEvoy [2018] IECA 240 stated at para. 21:-
"While there is no doubt that the power to make a differential order is a matter for the exercise of the trial judge's discretion, there is a clear legislative objective as identified in the cases to which I have referred. As pointed out by Murray J. in O'Connor, the provisions of s. 17 are inserted into the Act of 1981 under a heading 'Limitation on account of plaintiff's costs in certain proceedings'. In my view it is incumbent upon a trial judge in circumstances where an award is significantly within the jurisdiction of a lower court to make a differential order unless there are good reasons for not doing so. The trial judge must have regard to the clear legislative purpose, and have regard to all the circumstances of the case at hand which are relevant to the exercise of his/her discretion."
Application of principles to these proceedings
13. Was the plaintiff justified in commencing and prosecuting these proceedings in the High Court? The overlap of injuries sustained in the three accidents described in the main judgment and the ongoing sequelae without an earlier agreement about apportionment among the defendants in all three actions is relevant. However, the ultimate award of damages for the three sets of proceedings did not exceed the jurisdiction of the Circuit Court and this Court is limited by statute.
14. Was there a sufficient reason to prosecute these proceedings in the Circuit Court at least? Yes. This Court appreciates that the presentation of the plaintiff's claim in the pleadings and at trial was not an easy task given the multiple claims. It would have been a brave advisor or claimant in person to anticipate that the original claim for general and special damages would not exceed the jurisdiction of the Circuit Court. In truth the overall sum of damages awarded was close to the limit of the Circuit Court jurisdiction. By the time the trial started at the end of November of 2022, the plaintiff and his previous legal advisors based on the then limited claim for special damages were reasonably justified to keep the claim in the High Court. The without prejudice offers which were made supports this view, although that is a view taken with the benefit of some hindsight. The Court in this regard is further informed by the fact that the plaintiff's right to costs will be limited in time due to the effect of the tender made on behalf of Mr. Simons, the defendant in these proceedings.
15. The Court therefore directs the defendant in these proceedings to pay the costs and outlays of the plaintiff with a certificate for senior counsel up to and including 10 April 2019, such costs to be adjudicated on the Circuit Court scale in default of agreement.
16. The Court directs the plaintiff to pay the costs of the defendant from 28 July 2022. On that date the proceedings were assigned a trial date after the plaintiff had discharged his solicitors. There is an uncontroversial summary included in the submission concerning costs presented in the proceedings against Mr. Birney having record number 2019/5573P to which the Court has regard. The Court listened attentively to the submissions of counsel for the plaintiff and particularly the submissions about the potential application of the rules to make tenders and the effect of a Calderbank letter. The costs after 28 July 2022 will be most significant because they will include all the fees and outlays associated with preparing for and conducting the defence of these proceedings at the protracted and repeatedly adjourned trial days.
17. Excluded will be the costs of the written and oral submissions concerning the s. 26 application. As the main judgment explains, the plaintiff brought these proceedings without any claim for loss of earnings and very belatedly claimed at an adjourned hearing day a claim for very significant loss of earnings which was rejected. The parties are referred to the main judgment for the reasons for not acceding to the s. 26 application. In short, there was merit in bringing the s. 26 application. Although the Court appreciates the point made by counsel for the plaintiff that an issue was found in favour of the plaintiff, the plaintiff does not deserve any credit for having caused that application.
18. A pragmatic approach is taken by this Court in order to allow for a concise order for adjudication to be acted upon. Without having the benefit of an actual adjudication of costs, the Court can still anticipate that the defendant will be entitled to recover costs considerably in excess of those costs to which the plaintiff will be entitled. Furthermore, the vast majority of the costs in these proceedings will relate to the conduct of the protracted trial.
19. The Court considered whether the late agreement on apportionment of liability for the damages to be awarded should be a factor in delaying the period for the defendants' costs. The Court references the following for its decision to commence the period on 28 July 2022:-
(1) The defendant bears no responsibility for the plaintiff's decision to discharge his solicitors which caused the defendant to incur costs thereafter.
(2) Preparations for the new trial date of 29 November 2022 commenced at least at that point;
(3) The defendant cannot be foisted with the plaintiff's failure to appreciate what was required to present his claim.
20. As for the period from April 2019 to July 2022, the Court has little detail of what occurred between the parties referred to in the main judgment. Suffice to say that neither of the parties in these proceedings explained to the Court what may have been exchanged between them about the conduct of the proceedings particularly during the series of lockdowns for Covid 19. The plaintiff changed solicitors on 6 May 2022 and then discharged another firm of solicitors on 15 June 2022.
21. In conclusion and in summary, the Order including the Order for costs in these proceedings will be as follows:-
(1) The plaintiff recover from the defendant the sum of €13,262.50.
(2) The plaintiff recover his costs on the Circuit Court scale with a certificate for senior counsel from the defendant up to and including 10 April 2019.
(3) The defendant recover his costs from the plaintiff from 28 July 2022 up to and including the last day of the trial on 30 July 2024 excluding the costs incurred for the written and oral submissions for the s. 26 application.
(4) No Order for costs for the period 11 April 2019 to 27 July 2022 or for the costs hearing on 12 February 2025.
(5) All costs to be adjudicated in default of agreement.
(6) No payment of €13,262.50 to the plaintiff until all costs have been agreed or adjudicated while the defendant is entitled to offset the award of damages and costs to the plaintiff towards the costs awarded to the defendant.
Appearance:
Counsel for the plaintiff: Eoin Clifford S.C., Seamus Roche S.C. and Katie O'Connell B.L.
Solicitors for the plaintiff: Cashell Solicitors.
Solicitors for the defendant: Tormeys Solicitors LLP
Counsel for the defendant: Moira Flahive S.C. and Aoife Farrelly B.L.