Factual and Procedural Background
This opinion concerns an application for costs arising from a personal injury claim following a road traffic accident on 21st October, 2009. The Plaintiff was awarded damages of €84,688.52 by judgment delivered on 1st March, 2017. Subsequent to the judgment, a hearing was held to determine the appropriate costs order. The Defendant had made a tender of €60,001 prior to the hearing, which the Plaintiff ultimately beat. The dispute on costs centered on the Plaintiff’s substantial loss of earnings claim of €620,042, which was largely disallowed by the court as "totally unrealistic," with only a modest sum of €20,000 awarded for loss of opportunity on the job market. The hearing lasted eight days, longer than the two days initially estimated, partly due to issues relating to the loss of earnings claim and a preliminary discovery motion.
Legal Issues Presented
- Whether the general rule that costs follow the event should apply where the Plaintiff succeeded overall but failed on a discrete, substantial issue within the case.
- Whether the Plaintiff should be deprived of costs relating to the unsuccessful loss of earnings claim.
- Whether the Defendant is entitled to costs for the additional hearing time and expenses incurred due to the Plaintiff’s unsuccessful loss of earnings claim.
- The proper application of judicial discretion in awarding costs where partial success and failure occur in litigation.
Arguments of the Parties
Appellant's Arguments
- The Plaintiff, having succeeded in obtaining judgment and beating the Defendant’s tender, is entitled to costs as per the usual rule that costs follow the event.
- Reference was made to the Supreme Court decision in Godsil v. Ireland and the Attorney General [2015] IESC 103, emphasizing the constitutional right of access to courts and the principle that successful parties should not bear costs.
- The Plaintiff’s claim was reasonably stateable, and partial failure on certain issues should not deprive the Plaintiff of costs, especially as some award was made for loss of opportunity.
- The lengthening of the hearing was partly due to a discovery motion decided in the Plaintiff’s favour, and significant time was spent on medical evidence unrelated to the loss of earnings claim.
- The principles applied in complex commercial litigation cases such as Veolia Water U.K. plc v. Fingal County Council (No. 2) may not be appropriate in personal injury litigation.
- Departure from the general rule would discourage proper engagement with tender procedures and encourage excessive cost disputes.
Appellee's Arguments
- The Defendant made a tender prior to the hearing, but the Plaintiff beat it, entitling the Plaintiff prima facie to costs.
- However, the Plaintiff’s loss of earnings claim was vast (€620,042) and was wholly disallowed except for a modest €20,000, rendering the Plaintiff unsuccessful on that discrete issue.
- The Defendant argued that the court should consider the principles from Veolia Water U.K. plc v. Fingal County Council (No. 2), which allow for costs adjustment where a successful party fails on discrete issues that prolong the hearing and increase costs.
- The hearing lasted eight days instead of the estimated two, largely due to the loss of earnings claim, and the Defendant sought costs for six additional days and disallowance of costs for the Plaintiff’s expert witnesses related to that issue.
- The Defendant’s counsel had to expend considerable time and resources cross-examining witnesses and analyzing the Plaintiff’s substantial loss of earnings claim.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Godsil v. Ireland and the Attorney General [2015] IESC 103 |
General principle that costs follow the event; constitutional right of access to courts; discretion to depart only when justice demands. |
Reaffirmed the general rule that costs follow the event and that discretion to depart must be reasoned and connected to the facts. |
| Veolia Water U.K. plc v. Fingal County Council (No. 2) [2007] 2 IR 81 |
Principles for awarding costs when a party succeeds overall but fails on discrete issues that increase costs and prolong hearing. |
Guided the court’s approach to apportioning costs related to the unsuccessful loss of earnings claim and hearing prolongation. |
| O’Mahony v. O’Connor [2005] 3 IR 167 |
Example of costs adjustment where a party was penalized for raising unmeritorious issues causing additional hearing time. |
Referenced as precedent for disallowing costs related to unsuccessful discrete issues. |
| Arklow Holidays Ltd. v. An Bord Pleanla [2006] IEHC 15 |
Similar principles applied regarding costs for discrete unsuccessful issues in litigation. |
Used to support the approach to costs apportionment in this case. |
| Re Elgindata Ltd (No. 2) [1993] All ER 232 |
Principles on costs discretion; costs generally follow event; costs may be denied if unsuccessful issues increase costs significantly. |
Supported the proposition that the court should not lightly depart from the general rule but may do so if unsuccessful issues cause significant cost increase. |
| F. v. Ireland (Supreme Court 1995), Curtin v. Dil ireann [2006] IESC 27, Cork County Council v. Shackelton [2007] IEHC 334, McEvoy v. Meath County Council [2003] 1 IR 208, Kerins v. McGuinness and Ors [2017] IEHC 217, Dunne v. Minister for the Environment, Heritage and Local Government [2008] 2 IR 775 |
Instances where courts exercised discretion to depart from costs follow event rule in public interest or test cases. |
Noted as examples of discretionary departure from the general rule, but the court declined to depart in this case. |
Court's Reasoning and Analysis
The court began by reaffirming the general rule under Order 99 of the Rules of the Superior Courts that costs follow the event, meaning the successful party is ordinarily entitled to costs. However, this rule is not absolute, and a court may depart from it when justice so demands. The court analyzed the Plaintiff’s substantial loss of earnings claim, which was found to be "totally unrealistic" and largely disallowed. The Defendant incurred additional time and expense addressing this claim, including cross-examination of witnesses and expert evidence.
The court considered the principles from Veolia Water U.K. plc v. Fingal County Council (No. 2), which allow for costs adjustment where a successful party fails on discrete issues that materially increase costs and prolong the hearing. The court found that the hearing was extended by approximately two days due to the loss of earnings claim, not the six days claimed by the Defendant. The preliminary discovery motion also contributed to the longer hearing, and the Plaintiff did not unnecessarily prolong the trial.
Applying these principles, the court held that while the Plaintiff is prima facie entitled to costs for the action and the discovery motion, the Plaintiff should be denied costs related to the unsuccessful loss of earnings claim, including costs of certain expert witnesses. The Defendant is entitled to costs for the two additional days of hearing attributable to this discrete issue and to recover fees paid to the Defendant’s accountant who dealt specifically with this claim. The court emphasized that costs awards must be reasoned, proportionate, and connected to the conduct and issues of the case.
Holding and Implications
HOLDING: The court granted the Plaintiff costs for the discovery motion and six days of the hearing, but refused costs related to the Plaintiff’s expert witnesses on the loss of earnings claim. The Defendant was awarded costs for two additional hearing days attributable to the unsuccessful loss of earnings claim and the fees of the Defendant’s accountant related to this issue. Costs are to be taxed in default of agreement, and the Defendant may set off his costs against those payable to the Plaintiff.
IMPLICATIONS: The decision confirms the general rule that costs follow the event but clarifies that courts may, in personal injury litigation, apportion costs where a party fails on a discrete, substantial claim that prolongs the hearing and increases costs. It reinforces the requirement for reasoned discretion in costs awards and discourages parties from making wholly unsustainable claims without bearing associated costs. No new precedent was set beyond applying established principles to the facts of this case.