APPROVED
AN ARD-CHÚIRT
THE HIGH COURT
[2025] IEHC 288
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 12th day of May 2025
INTRODUCTION
1. Consequent upon the judgment delivered in the three jurisdiction motions in Yasar v CCC Essen Digital GMBH & Anor, Talibov v CCC Essen Digital GMBH & Anor and Senen v CCC Barcelona Digital Services SLU & Anor [2025] IEHC 248 ("the principal judgment"), the following three issues arose in relation to the question of costs.
FIRST ISSUE: THE JURISDICTION MOTIONS
2. The parties agreed that the issue of the costs of the three jurisdiction motions decided in the principal judgment are governed by sections 168 and 169(1) of the Legal Services Regulation Act 2015 ("the 2015 Act") and (a recasted) O. 99, rr. 2 & 3 of the Rules of the Superior Courts 1986, as amended and substituted ("the RSC 1986"). 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 2015 Act).
3. There was broad agreement between the parties that the default position applies to this first issue and that an order for costs in favour of the Essen entities could be stayed in the event of an appeal to the Court of Appeal.
4. Accordingly, as the first named defendants have been entirely successful in each of the jurisdiction motions, the costs of each motion follow the event and there is no basis for ordering otherwise. Those defendants are, therefore, entitled to their costs as against the plaintiffs in each of the three motions, including reserved costs (this will include the costs of 'this costs application' which took place before me on 30th April 2025 between 10:05 and 10:38am) to be adjudicated upon by the Office of the Legal Costs Adjudicators in default of agreement. In the event of an appeal, there will be a stay on the execution of the orders for costs until the determination of the appeal or until such further or earlier order as the Court of Appeal may direct.
SECOND ISSUE: COSTS ARISING FROM THE CALL-OVER ON 25TH JULY 2024
5. As part of the case management process, the three jurisdiction motions had been assigned a hearing date of 25th and 26th September 2024 in the pilot programme for hearing cases during September 2024.
6. The second issue arises from an application made on behalf of the plaintiffs during the call-over of the Non-Jury/Judicial Review List on Thursday 25th July 2024 where, on behalf of the plaintiffs, an adjournment was sought of the hearing of the jurisdiction motions in September on the basis of an argument that a further replying affidavit was required (in the jurisdiction applications) outside of the timetable previously directed and also that a discovery was required.
7. As mentioned, this application was made during the call-over of the Non-Jury/Judicial Review List, it lasted over an hour and a half, and the High Court List Judge (Hyland J.) delivered an ex tempore judgment and ruling the following morning on Friday 26th July 2024. In that ruling, Hyland J. directed that the discovery motions be returnable to 25th September 2024 together with the jurisdiction motions and gave directions in relation to letters, motions and affidavits in the discovery application and further directions in relation to the delivery of affidavits and legal submissions in the jurisdiction motions, so that both motions would be in a state of preparedness to be addressed at the hearing on 25th and 26th September 2024. Hyland J. reserved the costs of these matters, including the costs of the application on 25th and 26th July to the trial judge. I understand that following the court ruling, an application was made, and granted, on the following Tuesday 30th July 2024 (on the usual terms as to payment) for a written transcript of the DAR which recorded the court's judgment and ruling delivered on Friday 26th July 2024.
8. An application is now made on behalf of the CCC entities in respect of the reserved costs of, and associated with, attending court and making submissions on 25th July 2024, the 26th July 2024 and the application for the DAR on 30th July 2024 together with the costs associated with lodging the jurisdiction motion papers that week, along with any associated costs of that and any costs associated with the delay in the hearing of jurisdiction motions.
9. The CCC entities also request that these costs be paid forthwith pursuant to O. 99, r. 2(5) of the RSC 1986 and further oppose any application for a stay in that context in the event of any appeal.
10. O. 99, r. 2(5) of the RSC 1986 provides that, subject to the provisions of statute (including sections 168 and 169 of the 2015 Act) and except as otherwise provided by the RSC 1986, an order may require the payment of an amount in respect of costs forthwith, notwithstanding that the proceedings have not been concluded. The High Court Practice Direction (HC125 at paragraphs 3 and 4) inter alia provides that 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 costs.
11. In considering the opposing arguments of the parties on this issue, the following matters are relevant.
12. First, as set out above, Hyland J. had reserved those costs on the basis that there may be costs consequences in relation to the substantive motions (i.e., the jurisdiction motions) if ultimately they could not proceed on the day (i.e., on 25th and 26th September 2024), which is what in fact occurred. Those costs were, therefore, reserved, not on the basis of the outcome of the jurisdiction motions (or any appeal therefrom) but on whether there would be a delay on the hearing of those motions.
13. Second, if, for example, the plaintiffs chose to appeal the principal judgment, and were ultimately successful, I do not believe that the costs associated with, and consequential to, the application made at the call-over on 25th July 2024 are conditional on the outcome of those jurisdictional motions.
14. Third, I note that between the delivery of the principal judgment on 11th April 2025 and this costs application on 30th April 2025, the first named defendant's solicitors wrote to the plaintiff's solicitors on 25th April 2025 and inter alia expressed the view that the reservation of those costs at the call-over on the 25th and 26th July 2024 were in the context of: (a) the proceedings having been subject, on a consensual basis, to stringent case management and (b) the first named defendants ('the CCC entities') had in fact lodged the jurisdiction motions prior to the call-over on Thursday 25th July 2024 and that the court, in the ruling on 26th July, 2024, had acknowledged that the plaintiff's application for an adjournment had come late in the day, was made during the call-over of the Non-Jury/Judicial Review list, and, had taken over one and a half hours of court time.
15. Further, I consider having regard to these factors, that it is appropriate to make an order pursuant to O. 99, r. 2(5) of the RSC 1986 directing that the costs of the application at the call-over on 25th July 2024 (whether by agreement or by adjudication by the Office of the Legal Costs Adjudicator), be paid to the First Named Defendant by the Plaintiff.
16. Accordingly, in all three motions, I shall, grant the First Named Defendants ('the CCC entities) the costs of, and associated with, the applications of attending court and making submissions on 25th July 2024 and 26th July 2024 and the application for the DAR on 30th July 2024, together with the costs associated with lodging the jurisdiction motion papers that week and I shall also make an order pursuant to O. 99, r. 2(5) of the RSC 1986 that those costs when determined (whether by agreement or by adjudication by the Office of the Legal Costs Adjudicator) be paid to the First Named Defendants by the Plaintiffs (in relation to the three motions).
THIRD ISSUE: THE DISCOVERY MOTIONS
17. The third issue related to my previous costs ruling on the discovery motions on 30th October 2024, where I made a costs order in favour of the CCC entities against each of the three plaintiffs and in one of those motions, that involving Mr. Yasar and CCC Essen, I directed that those costs should be paid forthwith in accordance with O. 99, r. 2(5) of the RSC 1986, once those costs were agreed, or if necessary, adjudicated upon in default of agreement
18. An application is now made that I should direct that costs be paid forthwith in the remaining two discovery motions, namely to CCC Essen in the Talibov case and CCC Barcelona in the Senen case, once those costs are agreed and if necessary, adjudicated upon in default of agreement.
19. The recovery of the amount of costs of the discovery motions in the Talibov and Senen cases are essentially either matters for agreement between the parties or the legal costs adjudication process, and I understand from the solicitor's correspondence of 25th April 2025 (on behalf of the CCC entities), that those costs, i.e., the costs the subject of my ruling on 30th October 2024, are now ready for adjudication. Accordingly, bearing this in mind and having regard to my ruling on the costs of the discovery application on 30th October 2024, the terms of O. 99, r. 2(5) of the RSC 1986 and Practice Direction HC125, I do not consider it appropriate that those matters should now be revisited or that an Order be made pursuant to O. 99, r. 2(5) of the RSC 1986 and Practice Direction HC125 in relation to the costs of the discovery motions in the Talibov and Senen cases.
PROPOSED ORDER ARISING FROM THE PRINCIPAL JUDGMENT
20. Having regard to the findings made in the principal judgment, and considering the submissions of counsel, I propose, therefore, to make the following orders:
(1) An order pursuant to O. 12, r. 26 of the Rules of the Superior Courts 1986 (as amended) setting aside service of the notice of the proceedings bearing Record Number 2022/650P involving the claims of Ugur Yasar (plaintiff) against CCC Essen Digital GMBH (first named defendant) on the grounds that the High Court does not have jurisdiction to hear and determine the plaintiff's claim against the first named defendant under the terms of Article 8(1) of Regulation (EU) No.1215/2012 of the European Parliament and of the Council of 12th December 2012;
(2) An order pursuant to O. 12, r. 26 of the Rules of the Superior Courts 1986 (as amended) setting aside service of the notice of the proceedings bearing Record Number 2022/4639P involving the claims of Abuzar Talibov (plaintiff) against CCC Essen Digital GMBH (first named defendant) on the grounds that the High Court does not have jurisdiction to hear and determine the plaintiff's claim against the first named defendant under the terms of Article 8(1) of Regulation (EU) No.1215/2012 of the European Parliament and of the Council of 12th December 2012;
(3) An order pursuant to O. 12, r. 26 of the Rules of the Superior Courts 1986 (as amended) setting aside service of the notice of the proceedings bearing Record Number 2022/170P involving the claims of Kyra Senen (plaintiff) against CCC Barcelona Digital Services S.L.U (first named defendant) on the grounds that the High Court does not have jurisdiction to hear and determine the plaintiff's claim against the first named defendant under the terms of Article 8(1) and Article 25 of Regulation (EU) No.1215/2012 of the European Parliament and of the Council of 12th December 2012;
(4) A declaration that the High Court does not have jurisdiction to hear and determine the claims of Ugur Yasar (plaintiff) against CCC Essen Digital GMBH (first named defendant) in proceedings bearing Record Number 2022/650P;
(5) A declaration that the High Court does not have jurisdiction to hear and determine the claims of Abuzar Talibov (plaintiff) against CCC Essen Digital GMBH (first named defendant) in proceedings bearing Record Number 2022/4639P;
(6) A declaration that the High Court does not have jurisdiction to hear and determine the claims of Kyra Senen (plaintiff) against CCC Barcelona Digital Services S.L.U (first named defendant) in proceedings bearing Record Number 2022/170P;
(7) In the event of an appeal, the aforementioned orders at (1) to (6) shall be stayed pending the determination of the aforesaid appeals or such further or other order as the Court of Appeal may direct.
Costs
(8) An order granting the First Named Defendant as against the Plaintiff, the costs, including reserved costs, if any, (other than those reserved costs addressed in this ruling) of the jurisdiction application/motion bearing Record Number 2022/650P involving the claims of Ugur Yasar (plaintiff) against CCC Essen Digital GMBH (first named defendant), to be adjudicated upon by the Office of the Legal Costs Adjudicators in default of agreement. In the event of an appeal, there will be a stay on the execution of this order for costs until the determination of the appeal or until such further or earlier order as the Court of Appeal may direct.
(9) An order granting the First Named Defendant as against the Plaintiff, the costs, including reserved costs, if any, (other than those reserved costs addressed in this ruling) of the jurisdiction application/motion bearing Record Number 2022/4639P involving the claims of Abuzar Talibov (plaintiff) against CCC Essen Digital GMBH (first named defendant), to be adjudicated upon by the Office of the Legal Costs Adjudicators in default of agreement. In the event of an appeal, there will be a stay on the execution of this order for costs until the determination of the appeal or until such further or earlier order as the Court of Appeal may direct.
(10) An order granting the First Named Defendant as against the Plaintiff, the costs, including reserved costs, if any, (other than those reserved costs addressed in this ruling) of the jurisdiction application/motion the proceedings bearing Record Number 2022/170P involving the claims of Kyra Senen (plaintiff) against CCC Barcelona Digital Services S.L.U (first named defendant), to be adjudicated upon by the Office of the Legal Costs Adjudicators in default of agreement. In the event of an appeal, there will be a stay on the execution of this order for costs until the determination of the appeal or until such further or earlier order as the Court of Appeal may direct.
(11) An order granting the First Named Defendants against the Plaintiffs (in relation to the following proceedings: Record Number 2022/650P involving the claims of Ugur Yasar (plaintiff) against CCC Essen Digital GMBH (first named defendant); Record Number 2022/4639P involving the claims of Abuzar Talibov (plaintiff) against CCC Essen Digital GMBH (first named defendant); and Record Number 2022/170P involving the claims of Kyra Senen (plaintiff) against CCC Barcelona Digital Services S.L.U (first named defendant), the costs of, and associated with, the applications of attending the High Court and making submissions on 25th July 2024 and 26th July 2024 and the application for the DAR on 30th July 2024, together with the costs associated with lodging the jurisdiction motion papers that week, and pursuant to O. 99, r. 2(5) of the RSC 1986, that those costs when determined (whether by agreement or by adjudication by the Office of the Legal Costs Adjudicator) be paid to the First Named Defendants by the Plaintiffs and there shall be no stay in relation to this costs order.
(12) In the event that the parties wish to address these proposed orders, or reach an agreement as to a variation of the proposed orders, they are at liberty to mention the matter on a date which can be arranged through the Registrar.
CONLETH BRADLEY
12th May 2025