Tailored Costs Orders for Collapsed Loss-of-Earnings Claims in Personal Injury Actions (s.169 LSRA 2015)

1) Introduction

This decision concerns the appropriate costs order following a fully contested personal injury trial in which the plaintiff succeeded overall but suffered a major evidential and methodological collapse on a discrete head of claim—loss of earnings. The substantive hearing lasted five days with liability and quantum contested and approximately 11 witnesses called.

The plaintiff, Josephine Higgins, obtained damages of €170,564. However, she had advanced a very large loss-of-earnings case: the overall claim was said to be €1.752 million, including a claimed €1.4 million for loss of earnings, supported by an accountancy report that the court found “flawed” and “unsatisfactory”. Only €60,000 was ultimately allowed for past loss of earnings, with nothing allowed for future loss or capital appreciation loss.

The key issue at the costs stage was how the court should reflect (i) the plaintiff’s overall success and (ii) the disproportionality and failure of the loss-of-earnings case, bearing in mind the modern statutory framework for costs in s.169 of the Legal Services Regulation Act 2015.

2) Summary of the Judgment

3) Analysis

A) Precedents Cited

1. Chubb European Group SE v. Health Insurance Authority [2022] 2 IR 734

The court expressly adopted the costs principles outlined by Murray J (Court of Appeal), particularly those summarised at para. 19 of that judgment, as the organising framework for the s.169 analysis. The key takeaways applied were:

• Costs remain within the court’s discretion, even under the modern statutory regime.
• If a party is “entirely successful”, it is ordinarily entitled to costs unless the court “orders otherwise”.
• Whether to “order otherwise” depends on the “nature and circumstances of the case” and “conduct of the proceedings”.
• The court may tailor costs where a party is only partially successful, including awarding costs referable to successful elements.

In Higgins, these principles enabled a structured answer to three practical questions: (i) whether to depart from full costs to the successful plaintiff; (ii) whether the departure should extend to a positive award for the defendants; and (iii) how to craft a tailored order reflecting both fairness and the findings on the failed head of claim.

2. O'Sullivan v. Brozda [2022] IECA 163

This authority was invoked to contextualise what “conduct of the proceedings” can mean at the serious end of the spectrum—namely, where a defendant seeks dismissal for false or misleading evidence under s.26 of the Civil Liability and Courts Act 2004. The plaintiff relied on Collins J’s emphasis on the high threshold for such relief and the reputational gravity akin to a finding of civil fraud.

The High Court used O'Sullivan to draw a clear line: while the loss-of-earnings claim here was “seriously flawed and excessive”, the case was not in the territory of knowingly false evidence, and the defendants did not argue it was. This mattered because it constrained how far “conduct” could justify punitive or defendant-favouring costs consequences.

3. Veolia Water UK plc v Fingal County Council (No. 2) [2007] 2 IR 81

The defendants’ position resonated with the Veolia approach attributed to Clarke J: where the successful party loses on an issue that lengthened the trial, a court may (i) deny the successful party costs attributable to that elongation and (ii) effectively require the successful party to “pay” the other side’s costs referable to the failed issue—often implemented by deducting a number of hearing days from recoverable costs.

In Higgins, the court accepted the underlying logic that a discrete, trial-elongating issue can and sometimes should affect costs. However, it treated Veolia as an influence rather than a mechanical rule—especially given the personal injuries context.

4. Dardis v Poplovka [2017] IEHC 249

The court engaged with Barr J’s refinement of Veolia, emphasising proportionality and the distinction between:

• a plaintiff who loses a stateable issue (not ordinarily penalised merely for losing), and
• a plaintiff who advances a discrete head of claim that is ultimately “unstateable” and which clearly elongated the hearing (potentially justifying costs consequences).

Applying this framework, O’Higgins J identified important limiting features: the plaintiff’s loss-of-earnings claim was not rejected in its entirety (some evidence was “helpful and reliable” and €60,000 was allowed), and it was difficult to quantify precisely how much trial time was “unnecessary” because some earnings exploration was inevitable. Those features supported a calibrated reduction rather than a defendant-positive order.

5. Delany and McGrath on Civil Procedure, 5thEd., (2023)

While not a “precedent” as such, the text was used as a doctrinal bridge explaining how Irish courts operationalise Veolia/Dardis day-count deductions and issue-based costs adjustments. Its inclusion signals that the court’s approach was intended to be consistent with mainstream costs methodology rather than ad hoc impression.

B) Legal Reasoning

1. The s.169 framework: “entirely successful”, “order otherwise”, and tailoring

The judgment proceeds from s.169 of the Legal Services Regulation Act 2015 as interpreted through Chubb European Group SE v. Health Insurance Authority [2022] 2 IR 734. Even where a plaintiff wins the action, the court must consider whether the “nature and circumstances” and “conduct” warrant a different order.

2. Why the default rule was departed from (Issue 1)

The court held the “unusual collapse” of the loss-of-earnings claim had to be reflected in costs. Whether conceptualised as a discrete “event” for costs, or as taking the plaintiff outside the “entirely successful” category, the result was the same: the loss-of-earnings overreach was a legitimate basis to adjust costs—explicitly contemplated by s.169(1)(b) (reasonableness in raising/pursuing/contesting issues).

Critically, the court distinguished between:

• Excessive/unsupported litigation conduct (here), and
• Knowingly false/misleading evidence justifying dismissal under s.26 of the Civil Liability and Courts Act 2004 (not present).

This distinction anchored the proportionality of the response: the claim was overblown and criticised, but not fraudulent, and not wholly rejected.

3. Why no positive costs order was made for the defendants (Issue 2)

The defendants sought effectively “two days’ costs” on the basis that roughly two days were taken up with the loss-of-earnings evidence and cross-examination. The court refused, for several interlocking reasons:

• Not wholly unstateable: €60,000 was allowed and some evidence was accepted.
• Quantification difficulty: some earnings evidence was properly explored even on a reasonable case; isolating “wasted” time was imprecise.
• Personal injury context caution: the judgment notes it is not “a given” that the Veolia approach should apply identically in personal injuries as in modular commercial disputes.
• Overall success on core issues: liability was fully contested and the plaintiff succeeded; she recovered substantial damages reflecting serious injury impact.

The court also noted an important equitable consideration: the plaintiff had already suffered a “self-inflicted penalty” because the trial judge had indicated the actual value of pre-accident work was likely greater than the figure ultimately allowed, implying the loss-of-earnings award already reflected some restraint (and thus some implicit “sting” for overreach).

4. The tailored order (Issue 3): a pragmatic, proportionate calibration

Rather than attempting a granular issue-by-issue taxation within the judgment, the court used three concrete adjustments:

• Day-count reduction: limiting recoverable hearing costs to four days (disallowing one day) to reflect trial elongation attributable to the failed “set piece”.
• Expert/report consequence: disallowing the costs of preparing the flawed accountancy report, reflecting both the criticism of methodology and the admissibility dispute it generated.
• Costs of costs: making no order for the costs hearing, a further moderation reflecting that both sides had arguable positions on the appropriate adjustment.

The result is a recognisable s.169-driven “order otherwise”: the plaintiff remains the overall costs winner, but the overreaching head of claim produces real, intelligible, and targeted cost consequences.

C) Impact

• Signal to litigants on exaggerated specials: Even where plaintiffs win on liability and obtain substantial general damages, a disproportionately advanced special damages case (here, loss of earnings) can justify an explicit costs haircut under s.169.
• Expert report discipline: Disallowing the costs of preparing an expert report (rather than merely reducing hearing days) underscores that flawed expert methodology can have direct costs repercussions, particularly where it spawns admissibility disputes and trial time.
• Limits to defendant-positive costs in PI cases: The refusal to award defendants their costs for the failed issue (despite clear criticism) suggests a cautious approach in personal injuries: courts may prefer calibrated deductions from a plaintiff’s recoverable costs rather than reversing costs on discrete issues unless the claim is wholly unstateable, clearly separable, and demonstrably elongating.
• Conduct spectrum clarified: By contrasting ordinary overreach with s.26-level misconduct, the judgment helps future courts and parties frame submissions: “conduct” under s.169 ranges from case-management reasonableness to near-fraud, but the remedy should match the gravity.

4) Complex Concepts Simplified

• “Default rule” on costs: Generally, the winning party gets its costs. Under s.169 LSRA 2015, this is still the starting point, but the court can “order otherwise” for good reasons.
• “Entirely successful” vs “partially successful”: A party may win the case overall but lose on a significant issue. That can justify reducing costs to reflect the mixed outcome.
• “Discrete issue” and “elongation”: If one separable issue (e.g., a particular head of damages) takes up substantial trial time and the party pushing it loses, the court may reduce that party’s recoverable costs—often measured pragmatically in “days”.
• s.26 Civil Liability and Courts Act 2004: A special mechanism allowing dismissal of a personal injury action where a plaintiff knowingly gives false or misleading evidence. It has a high threshold and serious reputational consequences; it is not triggered merely by an overestimated or poorly proved claim.
• “No order as to costs”: Each side bears its own costs for that particular hearing or application (here, the costs hearing).
• “Adjudication” of costs: If parties cannot agree the amount, a costs adjudicator determines the recoverable figure under the applicable rules.

5) Conclusion

Higgins v Coleman and Anor (Approved) demonstrates a modern, s.169-grounded approach to costs in personal injury litigation: overall success still attracts costs, but a substantially overstated and methodologically flawed loss-of-earnings case can justify a tailored “order otherwise”. The key contribution of the decision is its calibrated toolkit—(i) reducing recoverable hearing days, (ii) disallowing the costs of a flawed expert report, and (iii) declining costs of the costs motion—while resisting the leap to a defendant-positive costs award in the absence of a wholly unstateable claim or s.26-level misconduct.