When a Full Appeal Is Run, a Reduced Appellate Award Does Not Displace “Entire Success” for Costs: Commentary on AB v MW (No. 2) [2025] IEHC 517

Introduction

This commentary examines the High Court of Ireland’s ruling on costs in AB v MW (No. 2) [2025] IEHC 517, delivered by Dignam J on 3 October 2025. The ruling follows the substantive appeal judgment in AB v MW [2025] IEHC 242 and determines the allocation of costs between the parties after an appeal from the Dublin Circuit Court in a personal injuries action for assault.

The central issue was whether the plaintiff/respondent (AB) was “entirely successful” within the meaning of section 169(1) of the Legal Services Regulation Act 2015 (LSRA) and Order 99 of the Rules of the Superior Courts (RSC), notwithstanding that the damages awarded by the High Court on appeal (€50,868) were lower than the Circuit Court award (€59,742.32). The defendant/appellant (MW) had run the appeal as a full challenge, seeking to reopen liability, reduce or eliminate damages, and procured a dismissal under section 26 of the Civil Liability and Courts Act 2004 on the basis of alleged false or misleading evidence.

The judgment clarifies the meaning of “entirely successful” in the context of appellate costs and sets out when a reduction in quantum on appeal will not detract from the successful party’s entitlement to costs, particularly where the manner in which the appeal was run materially shaped the litigation risk and outcome.

Summary of the Judgment

The court awarded the plaintiff her costs both in the High Court and in the Circuit Court, including any reserved costs (para. 27).
AB was held “entirely successful” within s.169(1) LSRA despite a reduced appellate award (paras. 8–11, 14–16, 23–26).
The defendant’s strategy—seeking to convert a quantum-only assessment into a full appeal on liability and damages, and applying under s.26 to dismiss the claim—was pivotal. AB defeated these efforts and established her entitlement to damages (paras. 9–11).
Even if the court’s “entirely successful” classification were wrong, the court would still award AB her costs under s.169(1) having regard to the nature and circumstances of the case and the conduct of the proceedings (para. 26).
Unsuccessful or unpursued minor items (e.g., certain special damages and aspects of the pleaded narrative) did not disturb “entire success” when viewed in the round (paras. 14–16).
The court rejected attempts to penalise the plaintiff on time estimates and hearing length; the defendant’s cross-examination and approach contributed substantially to the duration (para. 25).
The Digital Audio Recording (DAR) transcript of the hearing was to be made available to the defendant on his undertaking to bear the costs (para. 28).

Case Background

The plaintiff’s claim arose from an assault incident in January 2012 (with further conduct referenced in 2012–2013) at a crèche setting. In the Circuit Court, the matter proceeded as an assessment of damages following judgment in default of defence; the plaintiff obtained €59,742.32. On appeal, the defendant sought to treat the appeal as a full appeal on liability and quantum, contested the plaintiff’s entitlement to damages, and brought an application under s.26 of the Civil Liability and Courts Act 2004 to dismiss the claim for alleged false or misleading evidence. The High Court ultimately awarded €50,868 and dismissed the s.26 application. The present ruling addresses the costs consequences of that outcome.

Legal Framework

Legal Services Regulation Act 2015, sections 168–169:
- s.168 preserves a broad discretion in costs and allows orders at any stage.
- s.169 establishes that a party “entirely successful” is entitled to costs unless the court orders otherwise having regard to the nature and circumstances of the case and the conduct of the proceedings, including factors (a)–(g).
- s.168(2) empowers partial or time-limited costs awards.
Order 99 RSC:
- Reasserts the court’s discretion over costs.
- Requires courts to have regard to s.169(1) LSRA when awarding costs.
- Clarifies that “offer to settle” includes “without prejudice save as to costs” offers (O.99, r.3(2)).
Chubb European Group SE v Health Insurance Authority [2020] IECA 183 (Murray J): a key appellate authority synthesising the LSRA/RSC framework and setting out principles on entitlement, discretion, partial success, and conduct-based adjustments (para. 5).
Civil Liability and Courts Act 2004, s.26: permits dismissal of a personal injuries action where a plaintiff gives false or misleading evidence; the defendant’s s.26 application here failed (para. 11).

Precedents Cited and Their Influence

Chubb European Group SE v Health Insurance Authority [2020] IECA 183

Dignam J adopts Murray J’s eight-point synthesis (para. 19 in Chubb, reproduced at para. 5 of this judgment), which:

Confirms a general discretion in costs (s.168(1)(a); O.99, r.2(1)).
Requires courts to have regard to s.169(1) factors when awarding costs (O.99, r.3(1)).
Establishes that an entirely successful party is entitled to costs unless the court orders otherwise (s.169(1)).
Emphasises conduct before and during proceedings in deciding whether to “order otherwise” (s.169(1)(a)–(g)).
Recognises partial success adjustments (s.168(2)(d), s.168(2)(a)).

By expressly invoking Chubb’s framework, the court grounds its analysis in a structured, conduct-sensitive approach: entitlement is the default for an entirely successful party, but the court retains discretion to depart where the justice of the case requires, including issue-based or time-based apportionment. In AB v MW (No. 2), the court determines the plaintiff is entirely successful and, even if not, that the s.169(1) factors militate strongly in favour of awarding her costs in full.

The Court’s Legal Reasoning

1) “Entirely successful” notwithstanding a reduced award

The defendant argued that because the plaintiff’s damages were reduced on appeal and certain pleaded matters were not pursued or not proved, she could not be “entirely successful.” The court rejected this as “entirely artificial” given the way the appeal was run (para. 9). Key elements:

The original Circuit Court hearing was an assessment of damages following judgment in default of defence. The appellant could have confined the appeal to quantum. He did not (para. 10).
The appellant sought to reopen liability and argued the plaintiff had no entitlement to damages. The plaintiff defeated that strategy and established entitlement to damages on appeal, defeating the s.26 application (paras. 10–11).
In this context, “entirely successful” is assessed in the round: the plaintiff achieved the core objective—confirmation of her entitlement to damages—despite the reduction in quantum (paras. 8–11, 14).

2) Minor failures or abandoned heads do not negate “entire success”

The defendant identified several aspects to argue against costs or full costs, including:

A pleaded “punching” allegation allegedly not pursued.
References to “ongoing threats/harassment.”
Special damages claimed for security cameras and staff attendance at court which were not personal to the plaintiff.
A shortfall between medical expenses claimed and awarded.
A hearing that ran longer than estimated due to reports by Ms. Anne O’Connell and alleged “bad facts.”

The court’s responses:

“Punched” allegation: The plaintiff’s evidence of being struck (including banging her arm to dislodge her hand) fell within the pleaded “punching and/or striking.” It is inaccurate to say that head was abandoned (para. 17).
Threats/harassment: The pleadings could have been clearer, but they referred principally to the 2012–2013 period and to the defendant’s conduct at court hearings; the plaintiff did not run an unpursued case of a different character (paras. 18–22).
Security cameras/staff attendance and medical expenses: These were minor in the overall context and did not disturb the classification of “entirely successful” (paras. 14–16). Notably, business-related costs were not pursued once their character was raised (para. 26).
Hearing length/time estimate: The court declined to “parse” time for discrete issues; the length was influenced by the defendant’s approach, including extended cross-examination. A one-day estimate was not unreasonable for a quantum appeal where the defendant had not appeared below (para. 25).

3) Even if not “entirely successful,” costs would still be awarded under s.169(1)

Dignam J made clear that, if his assessment of “entire success” were wrong, he would nonetheless award the plaintiff her costs having regard to:

The nature and circumstances of the case, including the defendant’s decision to contest liability and to seek dismissal via s.26, both of which failed (paras. 10–11, 26).
The conduct of the proceedings by the parties, including the disproportionate cross-examination and the time taken by the defendant’s arguments about the scope of the appeal (para. 25).
The limited and minor nature of any heads not pursued or not proved by the plaintiff (paras. 14–16, 26).

In other words, the s.169(1)(a)–(g) matrix weighed decisively in favour of the plaintiff even on an alternative view that she was only partially successful.

Key Principles Emerging

Reduction in the appellate award does not automatically preclude a finding that the respondent was “entirely successful” for costs where the appellant ran a full liability-and-quantum appeal and sought dismissal but failed.
“Entire success” is assessed holistically, having regard to the litigation’s objectives and how the appeal was conducted; minor unsuccessful heads of claim or adjustments to special damages will not necessarily render the party only partially successful.
Courts are slow to engage in granular, issue-by-issue time parsing in appeals that have been broadened by the appellant’s choices, particularly where hearing length is substantially driven by that party’s conduct.
Even absent “entire success,” s.169(1) permits a full costs award where the nature, circumstances, and conduct of the proceedings make it just to do so.

Impact and Practical Implications

For Appellants

Strategic scope matters: Choosing to transform a quantum-only appeal into a full liability-and-quantum contest carries significant costs risk if liability is not overturned and s.26 applications fail.
Issue narrowing can be determinative: If quantum alone is at stake, confining the appeal to quantum may facilitate more proportionate costs outcomes.
Section 26 applications are high-stakes: Unsuccessful s.26 motions may weigh heavily against an appellant on costs.

For Respondents/Plaintiffs

“Entire success” can be maintained despite a lower appellate award where the core entitlement to damages is vindicated against a full challenge to liability.
Minor abandoned or reduced items (especially promptly discontinued business-related costs) are unlikely to displace entitlement to costs, particularly when litigation conduct by the other side increased complexity or duration.
Time estimates given in good faith for quantum appeals will not readily be used to penalise on costs where the appellant’s conduct expands the scope or length.

For the Courts and the System

The decision aligns costs outcomes with litigation conduct and proportionality, incentivising parties to limit appeals to genuinely disputed issues and to avoid overbroad, unfocused challenges.
It clarifies that the “entirely successful” standard is not a mechanistic, arithmetic test tied to whether the award goes up or down on appeal; it is tied to outcomes relative to the manner in which the case was contested.

Complex Concepts Simplified

Entirely successful: Under s.169(1) LSRA, a party who is entirely successful is entitled to costs unless the court orders otherwise. “Entire success” is holistic; it asks whether the party achieved the core outcome in the case as it was actually run, not whether every head was proved or the award increased.
Partially successful: The court may award a portion of costs or limit them to certain issues or dates (s.168(2)(a), (d)). This is typically considered where discrete issues can be cleanly separated and fairly costed.
Judgment in default of defence and assessment: If a defendant does not deliver a defence, judgment may be entered, and the case proceeds as an “assessment” of damages only. On appeal, an appellant may choose to confine the appeal to quantum or seek to reopen liability (subject to the appellate court’s jurisdiction and rulings).
Section 26 (Civil Liability and Courts Act 2004): Allows a court to dismiss a personal injury action if the plaintiff gives false or misleading evidence. It is a draconian remedy; failed applications can have significant costs implications.
Order 99 and s.169(1)(a)–(g) factors: The court considers conduct before and during proceedings, reasonableness in raising/contesting issues, manner of case presentation, exaggeration, payments in or offers to settle, and responses to settlement invitations (including mediation).
Reserved costs: Costs of interlocutory or procedural steps that were “reserved” to be dealt with later. The order here includes any such reserved costs.
DAR transcript: The Digital Audio Recording of the hearing. Access can be ordered on terms, here provided to the appellant on his undertaking to pay.

Application of the s.169(1)(a)–(g) Factors

While not itemised one-by-one, the judgment reflects the following s.169 considerations:

Conduct before and during proceedings: The defendant sought to expand the appeal beyond quantum and pursued an unsuccessful s.26 application; his cross-examination extended the hearing (paras. 10–11, 25).
Reasonableness in raising/contesting issues: Attempting to convert a quantum-only scenario into a full liability contest and contending for dismissal were ambitious; having failed, those choices informed the costs outcome (paras. 9–11, 24–26).
Manner of conducting the case: Prolonged cross-examination and arguments about appeal scope contributed to duration (para. 25).
Exaggeration: The court did not find the plaintiff’s conduct crossed into s.26 territory; minor items were treated as non-determinative (paras. 14–16, 26).
Offers to settle/payments into court/mediation: No specific offers or mediation refusals are noted; however, O.99, r.3(2) confirms that “without prejudice save as to costs” offers would be relevant where made.

What This Decision Does Not Do

It does not create a rule that a respondent always gets costs when an award is reduced. The holding is carefully tethered to the way the appeal was run (liability and s.26 were contested and failed).
It does not encourage indiscriminate pleading; the judgment notes that greater precision would have been preferable and credits the plaintiff for not pursuing business costs once their character was clarified (paras. 22, 26).
It does not endorse detailed issue-by-issue costs parsing in complex appeals, especially where hearing length was driven by the appellant (para. 25), but it preserves the court’s discretion to do so in other cases.

Practical Takeaways

Appellants should think carefully before broadening a quantum appeal to liability or invoking s.26 without strong grounds; the costs downside can be significant if those efforts fail.
Respondents can resist attempts to deny “entire success” based solely on a reduced award on appeal where the core entitlement was vindicated in the face of a full challenge.
Both sides should maintain precise pleadings and promptly drop non-viable heads (e.g., business expenses claimed personally), which will be noted favourably in costs assessments.
Time estimates should be made in good faith; courts will consider how the other side’s conduct changed the landscape before penalising on costs for duration.

Conclusion

AB v MW (No. 2) [2025] IEHC 517 provides authoritative clarification that a party can be “entirely successful” for the purposes of s.169(1) LSRA even where the appellate award is lower than the award at first instance, where the appellant chose to run a full appeal attacking liability and seeking dismissal and failed in that endeavour. The decision underscores that “entire success” is a holistic assessment anchored in how the case was actually litigated, not a mechanical comparison of monetary outcomes.

The ruling also exemplifies the proper application of the s.169(1)(a)–(g) factors: the nature and circumstances of the appeal, the parties’ conduct, and the reasonableness of issues raised can justify a full costs award even where some minor items are unsuccessful. The court’s refusal to engage in granular, issue-by-issue time parsing in a hearing elongated by the appellant’s strategy reinforces proportionality and fairness in costs adjudication.

In sum, the case consolidates Irish costs jurisprudence post-Chubb by aligning entitlement with substantive litigation success as framed by the parties’ conduct on appeal. It will guide future appellate costs decisions, discouraging overbroad appeals and encouraging focused, proportionate litigation strategies.

Case Details

Case: AB v MW (No. 2)
Citation: [2025] IEHC 517
Court: High Court of Ireland
Judge: Dignam J
Date: 3 October 2025
Related substantive judgment: AB v MW [2025] IEHC 242
Outcome on costs: Plaintiff awarded costs in the High Court and Circuit Court, including reserved costs; DAR transcript to defendant on undertaking to meet costs.