Connors v Kinsella & Ors (Approved)

Factual and Procedural Background

This opinion concerns an interlocutory injunction application made by the Plaintiff against the First Named Defendant regarding works carried out at a property known as 10 Casement Park, Bray, Co. Wicklow ("the property"). The substantive injunction application was refused by the court. The present judgment addresses the issue of costs arising from that interlocutory application and related procedural matters, including the terms of the order to be made and an inquiry as to damages. The Plaintiff acts as administrator of the deceased's estate and also as a beneficiary, seeking to set aside a transfer of property to the First Named Defendant. The interlocutory injunction application was a discrete, stand-alone matter distinct from the substantive proceedings, which concern allegations of duress and undue influence.

Legal Issues Presented

1. Whether the court should award costs in respect of the interlocutory injunction application and, if so, on what basis.
2. Whether any order for costs should be made against the Plaintiff personally or in her capacity as administrator of the deceased's estate.
3. Whether an inquiry as to damages should be ordered pursuant to the Plaintiff's undertaking given in support of the interlocutory injunction application.
4. Whether leave should be granted to the First Named Defendant to deliver an amended defence.

Arguments of the Parties

First Named Defendant's Arguments

• The interlocutory injunction application was a discrete, stand-alone application whose merits are unaffected by the substantive proceedings.
• Costs should follow the event in accordance with Order 99 of the Rules of the Superior Courts and s.169 of the Legal Services Regulation Act 2015.
• The application concerned issues such as balance of convenience and adequacy of damages, which will not be revisited at trial, justifying immediate determination of costs.
• An order for costs should be made against the Plaintiff personally, not merely in her capacity as administrator, as the estate has no assets and the litigation is contentious between beneficiaries.
• The rule in Vella v Morelli does not apply because the litigation is adverse beneficiary litigation unrelated to testamentary capacity or the state of testamentary papers.
• Leave should be granted to deliver an amended defence.

Plaintiff's Arguments

• The costs of the interlocutory injunction application should be reserved or made costs in the cause, as the application is connected to the substantive proceedings.
• The issue of duress and undue influence is a material factual dispute that influenced the interlocutory injunction outcome and will be revisited at trial, making it unjust to determine costs now.
• The attitude of non-party siblings is relevant to the balance of convenience and will be reconsidered at trial.
• The Plaintiff acts bona fide as administrator of the estate and should not be personally liable for costs, relying on the principle in Vella v Morelli and subsequent case law protecting administrators conducting bona fide litigation from personal cost liability.
• The Plaintiff furnished an undertaking as to damages in her capacity as administrator, and the estate has no assets.
• The Plaintiff contends it was reasonable to pursue the application given the fair issue to be tried established by the court.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analysed the costs issue under Order 99 of the Rules of the Superior Courts and s.169 of the Legal Services Regulation Act 2015, which provide that costs should generally follow the event unless justice requires otherwise. The Plaintiff argued that the interlocutory injunction application was intertwined with the substantive proceedings, involving a material factual dispute (duress/undue influence) that would be revisited at trial, making it unjust to determine costs now. The court rejected this, finding the interlocutory application to be a discrete, stand-alone matter unrelated to the substantive allegations and that the balance of convenience and adequacy of damages issues would not be revisited at trial.

The court noted that two years had elapsed since the interim relief was sought, during which time the proceedings could have progressed more efficiently. The Plaintiff, as administrator and solicitor, had given a worthless undertaking as to damages. The court emphasised the Plaintiff's duty to administer the estate efficiently and cost-effectively, concluding the injunction application should not have been made.

Regarding personal liability for costs, the court considered the rule in Vella v Morelli protecting administrators conducting bona fide litigation from personal cost orders. However, the court found the present case to be hostile litigation between beneficiaries adverse to one another, falling outside that protection as characterized in O'Connor v Markey and related authorities. The estate had no assets, and the Plaintiff's undertaking was of no value. The court held that justice required the Plaintiff be personally liable for costs, as the First Named Defendant should not bear the costs of an unmeritorious interlocutory application.

The court also ordered an inquiry as to damages arising from the Plaintiff's undertaking, to be adjourned to trial, and granted leave to the First Named Defendant to deliver an amended defence. The court declined to stay the costs order pending appeal or stay the discharge of interim orders.

Holding and Implications

The court's final decision was to order costs in favour of the First Named Defendant and against the Plaintiff personally in respect of the interlocutory injunction application. The court stayed execution of the costs order until the determination of the substantive proceedings, allowing for possible influence of the outcome on costs enforcement.

An inquiry as to damages pursuant to the Plaintiff's undertaking was ordered, to be heard at trial. Leave was granted to the First Named Defendant to deliver an amended defence. The court emphasized the importance of efficient estate administration and the need to discourage unmeritorious interlocutory applications that delay substantive proceedings.

No new precedent was established; the ruling applied established principles distinguishing bona fide estate administration litigation from contentious beneficiary disputes and the associated approach to costs liability.