Introduction

The case of Rogerson v O'Dwyer ([2025] IEHC 70) before the High Court of Ireland presents a significant development regarding the awarding of costs in interlocutory applications that have been unilaterally abandoned by the moving party. The judgment, delivered by Ms Justice Nessa Cahill on 10 February 2025, centers on the voluntary discontinuation of an injunction application by the Plaintiff, Frieda Rogerson, and the subsequent claim by the Defendant, John O'Dwyer, for his legal costs.

In this dispute, the Plaintiff had initiated an injunction application seeking mandatory relief to enforce her claim of a beneficial interest in a family property, along with orders to allow her to resume occupation and maintain her creative business activities at the said property. The Defendant, who is also a family member, vigorously opposed the application, maintaining that no concession, undertaking or change in circumstances warranted a reserved or deferred decision on costs.

At its core, the case examines whether the Plaintiff’s unilateral decision to discontinue her injunction application should shield her from cost liability or whether the Defendant’s stance—grounded in already clear pre-application indicators and the inherent injustice of initiating a contentious proceeding without any gain—mandates a costs award against her.

Summary of the Judgment

Ms Justice Cahill’s judgment concludes that the Plaintiff must bear the Defendant’s costs incurred in defending the injunction application. The court found that since the Plaintiff voluntarily abandoned her own motion—without any intervening concession, undertaking, or settlement with the Defendant—the general principle that “costs follow the event” applies. As a result, given that the Defendant was “entirely successful” in resisting the application, his entitlement to costs should not be undermined by speculative arguments or potential future trial outcomes.

The Judgment further clarifies that the conventional discretion available to the court on costs is not to be circumvented by attempts to reserve costs pending a trial, particularly in cases where proceeding would require undue speculation regarding factual disputes. Accordingly, the Plaintiff’s arguments to reserve costs or to base cost liability on a potential value of her claim were rejected.

Analysis

Precedents Cited

The judgment meticulously references several key precedents that underpin the court's reasoning:

• O’Dea v Dublin City Council [2011] IEHC 100 – This case supports the notion that if a motion is unilaterally discontinued, the moving party should bear the opponent’s costs. The judgment reaffirms that even in the absence of a final hearing outcome, a presumption exists that a party who initiates proceedings and then abandons them loses the benefits of litigation.
• Tekenable Ltd. v Morrissey [2012] IEHC 391 – The principles distilled by Laffoy J. here concerning the judicial reluctance to speculate on the potential outcome of an abandoned injunction application were critical in the analysis. The Court underscored that it is immaterial to surmise whether the injunction might have succeeded or failed.
• McFadden v Muckno Hotels Limited [2020] IECA 110 – Here, the doctrine that when a party “in a real sense prevailed”, they are entitled to costs was reinforced. Both McFadden and precedents cited therein informed the conclusion that the Defendant’s effective success on the interlocutory stage warranted costs.
• Irish Bacon Slicers Limited v Weidemark Fleischwaren GmbH & Co. [2014] IEHC 293 – Peart J’s analysis in this case emphasized that even if a judicial “event” lacks a final determination, granting costs against the discontinuing party is justified when the injunction becomes moot due to surrender of relief.
• Pembroke Equity Partners Limited v. Corrigan [2022] IECA 142 – This recent decision affirmed that the standard “costs follow the event” principle remains applicable regardless of whether the interlocutory motion is extensively argued or subsequently abandoned.

Legal Reasoning

The court’s legal reasoning is anchored on several core points:

• Discretion in Awarding Costs: The court reaffirmed that it retains broad discretion to allocate costs. In circumstances where the moving party voluntarily discontinues its claim—without any demonstrable benefit—it is appropriate for that party to be condemned to bear the legal costs of the adversary.
• Prohibition Against Speculation: The court underscored that it is neither necessary nor appropriate to predict the merits of an injunction application that was abandoned. This ensures that cost decisions are based on actual tactical decisions made by the parties rather than on hypothetical outcomes.
• The “Entirely Successful” Principle: Invoking section 169(1) of the Legal Services Regulation Act 2015 as interpreted via Order 99, the judgment reinforces that if one party is judged to have been “entirely successful” on any interlocutory step, they are entitled to costs. Given that the Plaintiff abandoned her motion, the Defendant’s position stands as “entire success” in the practical sense.
• Application to Abandoned Motions: Importantly, while Order 99, Rule 2(3) traditionally mandates an automatic costs award on a determination, the court concluded that even if this provision might be argued as inapplicable where no formal determination occurs, the overriding policy of cost allocation against party-initiated discontinuance remains compelling.

Impact on Future Cases

The decision in Rogerson v O'Dwyer is poised to have a significant effect on future interlocutory proceedings in several ways:

• Discouraging Frivolous or Strategic Applications: Litigants will now be cautioned against initiating interlocutory injunctions without a concrete expectation of success, given the financial risks if they later choose to withdraw.
• Clarity in Cost Allocation: Courts in Ireland can look to this decision as a guide when addressing cases where one party unilaterally discontinues a motion. The case reinforces the notion that the costs should follow the event without the need for speculative forecast of a trial outcome.
• Streamlining Judicial Process: The ruling supports judicial efficiency by discouraging wasteful litigation tactics. It grants judges clearer authority to adjudicate cost applications in interlocutory matters based solely on the parties’ conduct rather than on the unresolved merits of the underlying dispute.

Complex Concepts Simplified

Some of the judicial terminology in the judgment may appear arcane. Here is a simplified explanation of key legal concepts:

• Interlocutory Application: This is an application made during the course of litigation for interim relief (before the final decision in the matter). In this case, it was a request for an injunction.
• Costs Follow the Event: This principle means that the party who wins the case, or in this instance a particular motion, is entitled to have their legal costs paid by the losing party.
• Abandoned Motion: When a party starts a legal process (like seeking an injunction) and then decides on their own to withdraw it without any compromise or settlement, that motion is deemed "abandoned." The policy is that the initiating party should then be responsible for the opposing party’s costs.
• Entirely Successful: A party is “entirely successful” if they effectively neutralize or defeat the relief sought by their opponent. In this case, since the Plaintiff abandoned the injunction application, it effectively affirmed the Defendant’s position.

Conclusion

In concluding, the High Court’s judgment in Rogerson v O'Dwyer affirms a key legal principle: when a party unilaterally discontinues an interlocutory application without any intervening concession or tangible benefit, that party must bear the costs incurred by the opposing party. This approach, which reinforces the established notion that “costs follow the event” regardless of hypothetical trial outcomes, is pivotal for preserving judicial efficiency and preventing litigants from engaging in strategically disadvantageous litigation.

The ruling not only clarifies cost allocation for abandoned motions but also sets a strong precedent discouraging frivolous or speculative injunction applications. Courts and litigants alike now have further guidance on the precarious balancing act of initiating interlocutory relief in contentious family disputes and other civil matters. Ultimately, the judgment safeguards the fair administration of justice by ensuring that a party’s tactical withdrawal from contentious litigation is not a shield against the financial repercussions of their decision.