Collateral Challenges Do Not Pause Costs or Well‑Charging Relief: Structured application of LSRA 2015 s.168–169 and RSC O.61 r.12 in a de novo Circuit appeal — Commentary on Gaffney & Anor v Gaffney & Anor [No. 2] [2025] IEHC 602

Introduction

This commentary examines the High Court of Ireland’s costs ruling and final orders delivered by Bradley J in Gaffney & Anor v Gaffney & Anor (No. 2) [2025] IEHC 602 on 5 November 2025. The ruling follows the “principal judgment” in the same proceedings, Gaffney & Gaffney v Gaffney & Gaffney [2025] IEHC 460, which addressed a suite of interlocutory applications and the plaintiffs’ substantive application for well‑charging relief on a judgment mortgage registered over Folio 3976, County Meath.

The plaintiffs (respondents) — Alan and Derek Gaffney — sought costs on the basis of complete success across the appeal and the motions, save for accepting a 50% costs outcome on one of their own motions. The first‑named defendant (appellant), Philip Gaffney, resisted costs, arguing that the proceedings rested on a “false premise” due to an allegedly defective lis pendens and urging the High Court to defer final orders and costs until after collateral proceedings and motions (including matters listed in the Court of Appeal and separate High Court challenges to the judgment mortgage and lis pendens). The Court rejected the deferral and proceeded to make structured costs orders and final well‑charging orders, with a six‑month stay to allow redemption.

Summary of the Judgment

The High Court determined:

• It was appropriate to dispose of costs and make final orders arising from the matters heard and resolved in the principal judgment, notwithstanding pending collateral proceedings or motions elsewhere.
• On each motion before the High Court, costs followed the event under sections 168–169 of the Legal Services Regulation Act 2015 (LSRA 2015), with measurement and adjudication conducted pursuant to Order 61, rule 12 of the Rules of the Superior Courts 1986 (RSC 1986) by the County Registrar for County Meath.
• In respect of the plaintiffs’ own motion to extend time/seek variations on the Circuit Court order (Quinn J, 24 July 2024), the Court awarded the plaintiffs 50% of measured costs against the first‑named defendant, reflecting the de novo appeal context and certain procedural missteps highlighted in the principal judgment (notably a mistaken reference to a “cross‑appeal” in a 15 October 2024 letter).
• The first‑named defendant’s motions of 30 October 2024 (seeking time to respond to materials, discovery, setting aside a High Court order of 10 October 2024, and liberty to obtain a DAR transcript from a “for mention” hearing) were refused, with full measured costs awarded to the plaintiffs.
• The first‑named defendant’s motion of 13 November 2024 seeking removal of the judgment mortgage was refused, with full measured costs to the plaintiffs.
• The first‑named defendant’s motion of 28 January 2025 (seeking, inter alia, extended time to lodge submissions and directions around plaintiffs’ reference materials) was refused, with full measured costs to the plaintiffs.
• On the substantive de novo appeal of the well‑charging application, the Court made final orders declaring the plaintiffs’ judgment mortgage well‑charged, directed an account of incumbrances and inquiries as to priority, and ordered that if the debt remained unpaid within six months, the County Registrar was to effect sale and distribution under sections 31 and 117(2) of the Land and Conveyancing Law Reform Act 2009 (LCLRA 2009). Costs of the substantive application were awarded to the plaintiffs against the defendants, including reserved costs referable to earlier unsuccessful deferral applications by the first‑named defendant.
• Execution of the accounting/priorities and sale provisions was stayed for six months from perfection of the order to permit redemption.

Procedural Background and Parties

The plaintiffs, Alan and Derek Gaffney, hold a judgment mortgage arising from a Court of Appeal order of 25 May 2023 (amended under the “slip rule” on 26 July 2023) for:

• US$272,043.70 in favour of the first‑named plaintiff;
• US$100,000 in favour of the second‑named plaintiff;
• together with interest at the Courts Act 1981 rate.

The plaintiffs issued a Civil Bill for well‑charging relief on 22 January 2024. The Circuit Court (Quinn J) made orders on 24 July 2024, which — on appeal — led to a de novo rehearing before Bradley J, culminating in the principal judgment ([2025] IEHC 460). The present ruling addresses costs and final orders following that principal judgment, including responses to a sequence of motions advanced primarily by the first‑named defendant, Philip Gaffney, who argued, among other points, that these proceedings were tainted by a defective lis pendens.

Issues for Determination

• Whether the High Court should defer costs/final orders pending collateral challenges (to the lis pendens/judgment mortgage) and other listed motions in separate courts.
• How costs should be allocated across multiple motions and the substantive de novo appeal under LSRA 2015 s.168–169 and RSC O.61 r.12.
• What final well‑charging orders should be made under LCLRA 2009, including sale and priority arrangements, in light of the principal judgment.

Detailed Analysis

Authorities and Precedents Cited or Applied

• Legal Services Regulation Act 2015, sections 168 and 169:
  • Section 168 empowers the court to award costs.
  • Section 169 codifies “costs follow the event,” subject to enumerated factors (conduct, success, complexity, reasonableness, etc.) justifying departure or apportionment.
• Rules of the Superior Courts 1986, Order 61, rule 12:
  • Governs costs in appeals from the Circuit Court, including measurement/adjudication of costs by the relevant County Registrar.
• Land and Conveyancing Law Reform Act 2009, sections 31 and 117(2):
  • Provide for well‑charging relief, inquiries as to prior incumbrances and priorities, and the power to order sale and distribution of proceeds.
• Courts Act 1981:
  • Prescribes the rate of post‑judgment interest.
• Principal judgment in the same matter: Gaffney & Gaffney v Gaffney & Gaffney [2025] IEHC 460:
  • Contains the substantive reasoning resolving each motion and the well‑charging appeal. The present ruling implements that reasoning and addresses costs and final orders.

While no external case law is recited in the text of this costs ruling, the Court explicitly grounded its approach in the statutory framework (LSRA 2015, LCLRA 2009), the RSC, and the outcomes reached in the principal judgment. The Court of Appeal’s order of 25 May 2023 (later corrected under the slip rule) provided the judgment debt underpinning the judgment mortgage and the well‑charging relief.

Legal Reasoning

1) No deferral pending collateral challenges

The first‑named defendant urged the High Court to postpone costs and final orders because he had (a) issued proceedings to challenge/remove the judgment mortgage and lis pendens, and (b) listed separate motions before the Court of Appeal. The Court noted a similar attempt had already been made — to defer delivery of the principal judgment — and refused. Echoing that position, the Court held it was appropriate now to proceed with costs and final orders, addressing the matters already argued and decided before it.

The key point is one of case management and finality: absent a stay, injunction, or a binding order from a higher court compelling delay, the High Court can and should bring to conclusion the matters within its remit. Put differently, collateral or prospective challenges do not, of themselves, displace the Court’s duty to make orders consequent on its own judgment. This provides useful guidance for parties considering tactical applications to delay quantification of rights/liabilities after a de novo appeal has been heard and determined.

2) Costs follow the event under LSRA 2015, with targeted apportionment

Applying LSRA 2015 ss.168–169 and RSC O.61 r.12, the Court adopted a motion‑by‑motion approach:

• Plaintiffs’ motion to extend time/vary Circuit Court order: While the plaintiffs succeeded and the Court formally extended time to serve notice to vary, the Court ordered only 50% of measured costs against the first‑named defendant. The reduction turned on two factors articulated in the principal judgment:
  • The appeal from the Circuit Court triggered a de novo rehearing, altering the procedural complexion of the variation relief; and
  • There was an inconsistency between the plaintiffs’ 19 August 2024 letter explaining the application and the subsequent 15 October 2024 letter that mistakenly invoked a “cross‑appeal.”
  These are classic section 169 considerations involving conduct and the reasonableness/necessity of steps taken. The order exemplifies calibrated, not automatic, adherence to costs‑follow‑event.
• First‑named defendant’s motions of 30 October 2024 (to respond to materials/discovery; to set aside the 10 October 2024 High Court order and obtain a DAR transcript for a “for mention” hearing): In each instance, the Court refused the reliefs for the reasons given in the principal judgment and awarded full measured costs to the plaintiffs. The defendant did not identify any ground to disturb the costs proposals provisionally made in the principal judgment.
• First‑named defendant’s motion of 13 November 2024 (removal of the judgment mortgage): Refused for the reasons in the principal judgment, with full measured costs to the plaintiffs.
• First‑named defendant’s motion of 28 January 2025 (extensions/directions): Refused, with full measured costs to the plaintiffs.
• Substantive well‑charging appeal: The plaintiffs were “entirely successful,” so the Court awarded:
  • Measured costs against the defendants on the substantive application; and
  • Reserved costs against the first‑named defendant for the unsuccessful applications in July 2025 to defer delivery of the principal judgment, and the costs of the 24 October 2025 hearing (including the unsuccessful attempt to defer this costs ruling).

Across the board, the Court operationalised section 169’s factors — success, conduct, procedural choices, and the efficient administration of justice — rather than treating costs as a blunt instrument. The use of Order 61, rule 12 to channel cost measurement/adjudication to the County Registrar ensures procedural efficiency in the post‑appeal setting.

3) Final well‑charging orders: declaration, priorities, sale, and redemption window

Implementing the principal judgment’s conclusions, the Court:

• Declared the plaintiffs’ judgment mortgage well‑charged on Folio 3976 (County Meath) for the US dollar sums specified by the Court of Appeal, plus Courts Act interest.
• Ordered an account of other incumbrances and inquiries as to priorities under LCLRA 2009 s.31 and s.117(2)(a).
• Directed that, if the judgment debt is not discharged within six months, the County Registrar shall take appropriate steps and execute documentation to effect sale and distribution under s.31 and s.117(2)(b), satisfying the plaintiffs’ well‑charged mortgage.
• Stayed the execution of the accounting/priority and sale provisions for six months from perfection. This stay functions as a redemption period — a last opportunity for the defendants to discharge the debt before forced sale.

The sale mechanism via the County Registrar is expressly grounded in the LCLRA 2009 and is routinely used in well‑charging contexts to avoid multiplicity of proceedings and to ensure coherent priority resolution among incumbrancers.

Impact and Significance

• Costs practice in de novo Circuit appeals:
  • The ruling exemplifies granular, motion‑by‑motion costs assessment under LSRA 2015: success is determinative, but conduct and procedural context can justify apportionment (as with the 50% order against the first‑named defendant where the plaintiffs’ communication misstep and the de novo posture were relevant).
  • County Registrar measurement/adjudication under O.61 r.12 is confirmed as the default, streamlining post‑appeal cost quantification.
• Case management: deferral and collateral challenges:
  • The Court’s refusal to defer costs/final orders due to pending collateral challenges (lis pendens/judgment mortgage removal proceedings and appellate motions) underscores that, absent a stay or higher‑court direction, the High Court should bring its proceedings to finality. This discourages tactical deferral attempts after issues have been adjudicated.
• Well‑charging jurisprudence and enforcement:
  • The judgment provides a clear template for final orders in judgment mortgage cases: declaration, account of incumbrances/priorities, sale by County Registrar if unpaid, and a redemption window via a stay.
  • It confirms that denomination of the underlying judgment in a foreign currency (here, USD) is not an obstacle to well‑charging relief; Courts Act interest remains applicable.
• Litigation conduct:
  • The costs penalties on unsuccessful motions — and the inclusion of reserved costs for attempts to defer the principal judgment and this ruling — signal that satellite disputes and procedural gambits that do not advance the merits will attract adverse costs.

Complex Concepts Simplified

• Well‑charging order:
  • A court declaration that a judgment mortgage (a registered security created by registering a judgment debt as a burden on land) is “well‑charged” on specified property. It is typically followed by inquiries into other charges and, if payment is not made, a court‑supervised sale to satisfy the debt from the proceeds.
• Judgment mortgage:
  • Security created by registering a judgment against a debtor’s property. It does not transfer ownership but gives the judgment creditor priority rights as an incumbrancer, enforceable through well‑charging proceedings.
• Lis pendens:
  • A notice on a property’s register indicating the property is the subject of ongoing litigation. It warns third parties that the property may be affected by the outcome. An allegedly “defective” lis pendens does not necessarily impede independent enforcement of a judgment mortgage unless and until a court sets it aside, and in this case it did not warrant deferring costs or final orders.
• De novo rehearing (Order 61 RSC appeals from the Circuit Court):
  • The appeal is heard afresh in the High Court. Prior findings are not binding, and the High Court can revisit the evidence and issues. This procedural posture can affect costs analysis and the framing of applications (as reflected in the 50% costs apportionment on the plaintiffs’ own motion).
• Measured legal costs and adjudication by the County Registrar (O.61 r.12 RSC 1986):
  • Instead of a separate, full taxation/adjudication process, costs can be “measured” or adjudicated in a tailored way for Circuit appeals by the County Registrar of the relevant county, expediting quantification. Parties may first attempt agreement; failing that, the County Registrar adjudicates.
• DAR (Digital Audio Recording) and “for mention” hearing:
  • DAR is the court’s audio record. “For mention” lists are typically administrative; access to DAR transcripts is subject to court control and procedural rules. Attempts to leverage DAR access to unsettle otherwise regular orders will be scrutinised for proper basis, as seen in the refusal of the first‑named defendant’s motion.
• Slip rule:
  • A limited power allowing correction of accidental slips or clerical errors in orders (used here by the Court of Appeal to amend the 25 May 2023 order on 26 July 2023).
• Stay of execution/redemption period:
  • A pause on enforcing certain aspects of an order (here, accounting/priorities and sale) for a defined period (six months), giving the debtor a final chance to discharge the debt and avoid sale.

Practical Takeaways for Practitioners

• Expect the High Court to complete the costs and final orders phase after a de novo appeal unless there is a formal stay or a binding directive to delay. Mere pendency of collateral challenges will rarely suffice.
• Costs will be decided on a granular basis. Even where a party succeeds overall, section 169 factors (including correspondence missteps and procedural choices) can justify partial costs orders.
• In judgment mortgage enforcement:
  • Be prepared for the standard suite of orders — declaration of well‑charging, account/inquiries as to priorities, and sale through the County Registrar if the debt is not discharged.
  • Courts commonly allow a short redemption window via a stay, but this does not dilute the inevitability of sale if payment is not made.
• When appealing from the Circuit Court, plan for cost measurement/adjudication by the County Registrar under O.61 r.12 and ensure costs submissions are tailored to LSRA 2015 s.168–169 factors.
• Satellite motions (e.g., seeking to set aside routine orders, expansive discovery late in the day, or procedural deferrals without concrete legal basis) carry a high risk of adverse costs.

Conclusion

Gaffney & Anor v Gaffney & Anor (No. 2) [2025] IEHC 602 crystallises two important themes in Irish civil practice. First, the High Court will not defer making costs and final well‑charging orders on account of parallel or prospective proceedings unless a clear legal basis compels delay. Second, the Court’s application of LSRA 2015 sections 168–169 is nuanced and fact‑sensitive: costs generally follow the event, but apportionment is available where conduct and procedural context warrant it — as in the 50% costs order on the plaintiffs’ own motion in a de novo appeal environment.

Substantively, the ruling provides a textbook set of well‑charging orders — declaration, priorities, and sale via the County Registrar under LCLRA 2009 — tempered by a practical six‑month stay to allow redemption. Procedurally, it reinforces disciplined case management and the efficient use of Order 61’s cost machinery for Circuit appeals. The decision thus offers a clear template both for litigants enforcing judgment mortgages and for courts managing multi‑motion appeals where collateral skirmishing threatens to delay the orderly conclusion of proceedings.

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Case: Gaffney & Anor v Gaffney & Anor [No. 2] (Rev1) [2025] IEHC 602, High Court (Bradley J), 5 November 2025.

Related principal judgment: Gaffney & Gaffney v Gaffney & Gaffney [2025] IEHC 460.