Irish Bank Resolution Corporation Limited (In Special Liquidation) & anor v Fingleton (Approved)

Factual and Procedural Background

This Supreme Court ruling concerns costs arising from a substantive appeal judgment delivered on 19 December 2024 ([2024] IESC 59). The Supreme Court had dismissed the Appellant’s appeal from a Court of Appeal decision (10 May 2023), which in turn had dismissed an appeal from a High Court decision (Judge Hunt, 14 May 2021). The High Court had refused the Appellant’s application to dismiss or permanently stay the proceedings under the court’s inherent jurisdiction, where the Appellant contended that delay and severe ill-health created a real or substantial risk of an unfair trial or unjust result.

Following the substantive appeal judgment, the Supreme Court made a provisional order for costs in favour of the Respondents unless the Appellant filed submissions to the contrary. The Appellant filed submissions (13 January 2025) and the Respondents replied (27 January 2025). This ruling determines the costs issue and an application to stay enforcement of any costs order.

Legal Issues Presented

1. Whether the Supreme Court should depart from the default rule that it determines costs of an interlocutory application and awards them to the successful party.
2. Whether any costs order in favour of the Respondents should be stayed pending determination of the underlying proceedings.

Arguments of the Parties

Appellant's Arguments

• The costs question should be reserved to the trial judge, or “costs in the cause,” to avoid potential unfairness if the Appellant ultimately succeeds on the merits or establishes at trial that the proceedings are beyond the reach of a fair trial.
• Recent witness depositions in The Region allegedly showed the Respondents’ documentary record to be severely deficient; this, the Appellant argued, could affect the trial judge’s views on merits and costs, making it risky to fix costs now “divorced” from the ultimate outcome.
• Alternatively, if costs were awarded against the Appellant, enforcement should be stayed pending trial for pragmatic efficiency reasons, including potential set-off and reconciliation of costs orders at the end of the trial.

Respondents' Arguments

• The default position is that the court determines costs of an interlocutory application and the successful party receives its costs; departure requires exceptional circumstances.
• The Appellant’s reliance on possible ultimate success on the merits impermissibly invited speculation and was an argument available to any unsuccessful interlocutory applicant.
• The unfair-trial-risk issue was said to be for the trial judge; any later resolution of that issue did not justify departing from the default costs approach for this discrete interlocutory appeal.
• Alleged documentary deficiencies were, by prior agreement/acceptance, not to be pre-determined on the interlocutory appeal and were of no real relevance to costs of the appeal.
• A stay was opposed because the Appellant identified no prejudice from immediate enforceability and relied only on pragmatic considerations that could be advanced in any case.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court held that the accepted default position (under the cited statutory and rules framework) is that the Court normally determines costs of an interlocutory application and awards costs to the successful party. A departure requires the unsuccessful party to show that “it is not possible justly to adjudicate upon liability for costs on the basis of the interlocutory application.”

The Court found the Appellant had not shown exceptional circumstances:

• Possible success on the merits: The Court accepted the Respondents’ submission that this contention undermines the rationale of determining interlocutory costs when the interlocutory application is decided and could be made by any unsuccessful party. The interlocutory issue here was “self-standing” and “discrete,” favouring a normal costs order.
• Possible success at trial on unfair-trial risk: The Court considered this misconceived because it was already acknowledged that the Appellant could raise that issue at trial; that did not prevent the Court from justly determining costs of the interlocutory appeal.
• Alleged documentary deficiencies: The Court treated this as a matter for the trial judge with very limited relevance to the costs application.

However, on the separate request for a stay, the Court exercised discretion to grant a stay of the costs order, noting the trial was listed for 6 May 2025 and accepting the pragmatic rationale concerning potential set-off and reconciliation of costs orders at the conclusion of trial.

Holding and Implications

HOLDING: The Court ordered costs in favour of the Respondents on the interlocutory appeal costs application, and granted a stay on that costs order pending determination of the underlying proceedings (trial listed for 6 May 2025).

Implications: The Respondents remain entitled to their costs of the interlocutory appeal, but enforcement is deferred until the underlying proceedings progress to trial, facilitating potential later set-off/reconciliation of costs orders. The ruling applies the default costs approach for interlocutory applications; no broader implications beyond this case are stated in the opinion.

Anonymization note: Party names have been replaced with generic roles (“Appellant,” “Respondents”) and judicial names with placeholders (e.g., “Judge Hunt”).