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Higgins v Coleman and Anor (Approved)
Factual and Procedural Background
This is an ex tempore costs judgment delivered by Judge O'Higgins on 23 January 2026 following a substantive personal injury trial (judgment delivered 15 December 2025). The substantive hearing lasted five days, with liability and quantum fully contested and some 11 witnesses called. The plaintiff succeeded in obtaining damages but the court made significant adverse findings about the plaintiff's loss of earnings claim. The present application concerns the appropriate costs order in light of those findings.
Legal Issues Presented
- Whether the normal default rule of awarding costs to the successful party should be departed from in light of the collapse of the plaintiff's loss of earnings claim.
- If a departure is warranted, whether the adjustment should be limited to reducing the plaintiff's costs or should result in a positive costs award in favour of the defendants on that issue.
- Whether and how the costs order can be tailored to reflect the court's findings and the justice of the case.
Arguments of the Parties
Defendant's Arguments
- Attorney Lucey submitted that approximately two of the five trial days were taken up with the loss of earnings evidence, which flowed from an accountancy report and expert methodology found to be flawed.
- Relied on section 169(1) of the Legal Services Regulation Act 2015 and the statutory factors concerning the "nature and circumstances of the case" and "the conduct of the proceedings by the parties" (sub-paras (a)–(d)).
- Asserted that the defendants were justified in contesting the excessive claim and sought costs to reflect the court's criticisms (seeking, in substance, two days' costs or an equivalent adjustment).
Plaintiff's Arguments
- Attorney Creed submitted the outcome should be assessed in the round: liability was contested but the plaintiff was largely successful and obtained substantial damages.
- Argued the plaintiff conducted the proceedings properly; no basis for a dismissal under section 26 of the Civil Liability and Courts Act 2004 (relying on O'Sullivan v. Brozda [2022] IECA 163 as to the high threshold for such orders).
- Sought an award of costs to reflect overall success, with only any necessary adjustment to reflect the reduced loss of earnings award.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Chubb European Group SE v. Health Insurance Authority [2022] 2 IR 734 | General principles on costs, including preserved discretion, entitlement to costs where entirely successful, and s.169(1) considerations. | The court applied the principal rules identified at para.19 of the case as the guiding framework for the costs exercise in this matter. |
| Veolia Water UK plc v Fingal County Council (No. 2) [2007] 2 IR 81 | Principle that where a successful party's failure on discrete issues has lengthened trial time, the court may deduct costs for the time attributable to those issues or require payment to the unsuccessful party for that portion. | The court used Veolia principles to consider whether to deduct trial days from the plaintiff's costs to reflect time spent on the unsuccessful/inflated loss of earnings claim. |
| Dardis v Poplovka [2017] IEHC 249 | Application and endorsement of Veolia principles and distinction between a stateable claim and a wholly unsustainable discrete claim warranting cost penalties. | The court relied on the reasoning in Dardis (as explained in the authorities) in assessing whether the loss of earnings claim was a discrete, unsustainable head of claim justifying cost penalties. |
| O'Sullivan v. Brozda [2022] IECA 163 | High threshold for section 26 dismiss orders and the serious reputational consequences of findings of knowingly false or misleading evidence. | Cited by the plaintiff and considered by the court to emphasise that this case did not meet the threshold for a section 26 dismissal or equivalent findings of knowingly false evidence. |
Court's Reasoning and Analysis
The court identified and applied the principles from Chubb as the overarching framework and analysed three issues.
Issue 1: The court concluded that a departure from the default rule was warranted because the plaintiff's loss of earnings claim had "unusually collapsed" and parts of the accountancy-based claim were found seriously flawed; section 169(1)(b) permits regard to be had to such conduct. However, the claim was not entirely disallowed and some evidence on earnings was reliable.
Issue 2: Applying Veolia and Dardis, the court considered whether to (a) reduce the plaintiff's costs by deducting trial time attributable to the failed element or (b) make a positive award in favour of the defendants. The court found it would be disproportionate to make a positive costs award to the defendants given the plaintiff's overall success and legitimate pursuit of other heads of damage, including significant awards for psychiatric injury and back injuries.
Issue 3: The court sought a tailored order reflecting the case features: the plaintiff obtained a total award of €170,564 (broken down in the judgment), liability was fully contested but the plaintiff prevailed on it, the loss of earnings element was partly unreliable and had lengthened the trial, and no findings were made that the plaintiff knowingly gave false evidence. Balancing these factors, the court fashioned three specific cost adjustments rather than a full departure from the plaintiff's entitlement to costs.
Holding and Implications
Core Ruling:
- The plaintiff is entitled to the costs of a four-day hearing (i.e., one full day's costs disallowed).
- Costs associated with the preparation of the accountancy report are disallowed.
- No order for costs in respect of the costs hearing; the plaintiff's costs are to be adjudicated in default of agreement between the parties.
Implications: The direct effect is that the plaintiff recovers most but not all costs—one day's costs and costs tied to the accountancy report are disallowed, and the parties must either agree costs or proceed to adjudication. The judgment does not purport to establish a new precedent beyond applying established principles to the facts of this case.
Appearances
Attorney Creed and Attorney O'Sullivan instructed by Company B for the Plaintiff.
Attorney Lucey and Attorney Cotter instructed by Company C for the Defendants.
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