“Plain-English Judging” and the Threshold for Enhanced Costs
Commentary on Propiteer Ireland Ltd v Castlehaven Property Finance DAC & Ors ([2025] IEHC 451)

Introduction

The High Court (Commercial List) decision of Twomey J. in Propiteer Ireland Ltd v Castlehaven Property Finance DAC & Ors is remarkable for two intertwined reasons:

  • Language Reform: It expressly commits Irish courts to using plain English – and, where feasible, to avoid Latin and technical “terms of art” – so that judgments are intelligible to the “reasonably intelligent layperson”.
  • Costs Clarification: It revisits the rarity of “legal practitioner and client” (solicitor-and-client) costs, re-branding them “enhanced costs”, and explains when a court should—and should not—award them instead of the “usual” (party- and-party) costs.

The plaintiff, Propiteer Ireland Ltd (“Propiteer”), had sued four defendants, including Castlehaven Property Finance DAC (“Castlehaven”), alleging breach of contract, fiduciary duty and conspiracy. Propiteer discontinued the action shortly before a security-for-costs hearing. Castlehaven then sought its costs on the more punitive “legal practitioner and client” basis. Twomey J. refused, awarding Castlehaven only the “usual costs” and, in doing so, pronounced a set of guiding principles on judicial language and cost awards.

Summary of the Judgment

1. The Court declared that, save where accuracy would be sacrificed, judgments should avoid obscure legal jargon and Latin, thereby giving practical effect to Lord Bingham’s rule-of-law requirement that “the law must be accessible, intelligible, clear and predictable” and to the Supreme Court’s call in PW v CIE for lay-friendly pleadings.
2. For costs terminology, Twomey J. substituted:

  • Party and party costs → “the usual costs order”.
  • Legal practitioner and client costs → “enhanced costs”.

3. Although Propiteer had instituted proceedings on a false premise (its deponent wrongly swore he was a director), the Court:

  • acknowledged that even the usual High Court costs are “prohibitive” and punitive;
  • found the misconduct insufficiently “egregious” to justify the exceptional remedy of enhanced costs; and
  • emphasised policy reasons for not discouraging early discontinuance of weak claims.

4. Result: Castlehaven gets its usual costs; its application for enhanced costs fails. Provisionally, Propiteer is awarded its own (usual) costs of contesting the enhanced-costs application.

Analysis

Precedents Cited

  • PW v CIE [1967] IR 137 (Supreme Court)
    Required pleadings to use language “easily understood by the reasonably intelligent layman”. Twomey J. extends that logic to judgments themselves.
  • Churchill v Merthyr Tydfil CBC [2024] 3 All ER 771 (EWCA)
    Vos MR consciously abandoned the Latin term “obiter”. Invoked as persuasive support for an Irish move to plain English.
  • Trafalgar Developments Ltd v Mazepin [2020] IEHC 13
    Barniville J. labelled party-and-party the “normal position” and stressed that solicitor-and-client costs require “a good reason”. Forms the doctrinal spine for refusing Castlehaven’s request.
  • Dunnes Stores v An Bord Pleanála [2016] IEHC 697
    Example where enhanced costs were granted after a finding of process abuse. Contrasted to the present case where no such findings exist.
  • Shell E&P (Ireland) Ltd v McGrath (No. 3) [2007] 4 IR 277
    Laffoy J. declined enhanced costs absent trial-stage findings. Relied upon by Twomey J. to refuse an uplift in the Propiteer scenario.
  • Numerous judicial remarks on the “terrifying”, “prohibitive” scale of Irish High Court costs (SPV Osus, Bourbon v Ward, Kelly P.’s speeches, etc.), reinforcing that even the usual costs have punitive bite.

Legal Reasoning

  1. Rule-of-law Accessibility. Starting from Bingham’s formulation, the Court equates accessibility of the law with accessibility of judgments that interpret it. Hence, plain language is a constitutional-level imperative, not mere stylistic preference.
  2. Implicit Extension of PW v CIE. If pleadings must be lay-friendly, it would be “illogical” for judgments—the court’s own product—to be shrouded in technicalities. The decision extrapolates an obligation on judges themselves.
  3. Cost-award Taxonomy. By re-labelling the two traditional bases “usual” and “enhanced”, the Court both simplifies language and underscores that solicitor-and-client awards are exceptional.
  4. Discretionary Test for Enhanced Costs. Building on Trafalgar, the judge frames the question: has the losing party’s conduct been so “egregious” that the court must mark its “disapproval or displeasure”? Without sworn evidence or judicial findings on ulterior motives, the threshold is not met.
  5. Policy of Encouraging Early Discontinuance. Analogy is drawn to sentence discounts for criminal guilty pleas. Over-penalising a party who candidly abandons a weak civil case would deter efficient settlement and squander court resources.

Potential Impact

  • Judicial Drafting Culture: The judgment could accelerate a jurisdiction-wide shift toward plain-English judgments, aligning Ireland with UK trends and promoting public trust.
  • Costs Litigation:
    • Expect more litigants to brand solicitor-and-client claims as “enhanced-costs” applications, with the onus clearly on the applicant to prove exceptional, blameworthy conduct.
    • Parties may reference this case to argue that early discontinuance or settlements warrant restraint in cost uplifts.
  • Legislative Pressure: By again describing routine High Court costs as “prohibitive”, the judgment adds judicial momentum to calls for statutory or regulatory reform on legal costs.
  • Cross-Court Dialogue: Twomey J.’s endorsement of English Churchill may enrich comparative discourse and invite Irish appellate confirmation.

Complex Concepts Simplified

Party and Party Costs (“Usual Costs”)
The ordinary measure of a winner’s recoverable costs. Only those “proper and necessary” to achieve justice are allowed.
Legal Practitioner and Client Costs (“Enhanced Costs”)
A higher, more comprehensive measure: all costs are recoverable unless unreasonable. Ordered only to penalise serious litigation misconduct.
Legal Costs Adjudicator
Independent office (formerly Taxing Master) that calculates the quantum of costs after a court decides which party must pay.
Egregious Conduct
Behaviour so seriously improper that the court feels compelled to express formal disapproval through punitive cost consequences.
Discontinuance
Voluntary withdrawal of court proceedings by the plaintiff. Typically treated as a “loss” for cost purposes but may attract credit if done early.

Conclusion

Propiteer v Castlehaven is more than a routine costs ruling; it is a manifesto for judicial clarity and proportionality. Twomey J.:

  • Crystallises a normative duty on Irish judges to write in plain English, thereby strengthening the accessibility limb of the rule of law.
  • Restates, in lucid terms, that solicitor-and-client (enhanced) costs remain exceptional and must be anchored in proven, egregious misconduct.
  • Articulates a policy rationale—mirroring criminal sentencing discounts—for incentivising timely discontinuance or concession of weak claims.

Going forward, litigants are likely to cite this case both for its language principles and for its disciplined approach to cost sanctions. In the broader legal landscape, the decision underscores how the judiciary can, through modest doctrinal steps, advance transparency, fairness and efficiency in the administration of justice.