ACE Autobody Ltd v Motorpark Ltd & Ors (Approved)

Factual and Procedural Background

This Supreme Court ruling concerns costs following an unsuccessful appeal brought by the Plaintiff/Appellant against multiple Defendants/Respondents (including a group described as “solicitor defendants” and another described as “Buttle defendants”), arising from litigation connected to a failed property transaction.

The underlying dispute stemmed from a property transaction in July 2006 between the Plaintiff/Appellant and one of the Defendants/Respondents, under which the Defendant/Respondent agreed to purchase certain lands subject to obtaining planning permission, and to advance the Plaintiff/Appellant approximately €1 million, repayable on termination of the contract or the securing of planning permission. A mortgage deed dated 5 July 2006 provided security over certain lands of the Plaintiff/Appellant.

After the 2008 property crash, the transaction did not proceed. The €1 million debt was assigned to Company A, with notice given in November 2011. Company A obtained judgment against the Plaintiff/Appellant in November 2012 (no appearance having been entered). The Plaintiff/Appellant brought a motion to set aside that judgment, which was adjourned in December 2013 pending the outcome of other plenary actions issued by the Plaintiff/Appellant in August 2012 and May 2013.

In August 2012, the Plaintiff/Appellant initiated summary summons proceedings seeking approximately €3 million against a Defendant/Respondent arising from the failed contract; a defence motion to stay/dismiss was also adjourned in December 2013. In May 2013, the Plaintiff/Appellant commenced a further plenary action repeating claims against the Defendant/Respondent(s) connected with the debt and also suing various “solicitor defendants” and a legal executive associated with a solicitor practice, arising from the property transaction.

No steps were taken by the Plaintiff/Appellant in the 2013 proceedings until August 2018, when a Defendant/Respondent moved to dismiss for want of prosecution; additional motions followed in November 2018, including a motion by “solicitor defendants” relying on Order 122, rule 11 of the Rules of the Superior Courts and/or the court’s inherent jurisdiction to dismiss/strike out for want of prosecution.

In September 2019, the High Court struck out the proceedings for inordinate and inexcusable delay, finding demonstrable prejudice to the Defendants/Respondents and holding that the balance of justice favoured dismissal. The Court of Appeal dismissed the Plaintiff/Appellant’s appeal in October 2022. The Supreme Court granted leave under Article 34.5.3 of the Constitution and ultimately dismissed the appeal in May 2025. A subsequent application by the Plaintiff/Appellant to set aside that judgment (invoking “SC17”) was rejected. The present ruling addresses the outstanding issue of costs.

Legal Issues Presented

1. What costs orders should be made in respect of the proceedings in the High Court, the Court of Appeal, and the Supreme Court following the dismissal of the Plaintiff/Appellant’s appeal and the rejection of the post-judgment application?
2. Whether any different approach to Supreme Court costs was warranted due to the asserted public interest element arising from the re-examination (and reformulation) of the test governing dismissal for delay.
3. What costs order (if any) should be made concerning the participation of the Attorney General as a notice party acting in a role akin to amicus curiae.

Arguments of the Parties

Plaintiff/Appellant's Arguments

• Complained about how the Supreme Court dealt with the merits of the case in the earlier appeal.
• Contended that the Supreme Court acted without jurisdiction by sitting as a court of seven judges.

Solicitor Defendants/Respondents' Arguments

• Maintained they were entirely successful and sought costs (in all courts) against the Plaintiff/Appellant.

Buttle Defendants/Respondents' Arguments

• Contended they were successful in all courts.
• Accepted there was a public interest dimension due to a second Supreme Court hearing, but argued that this should not, of itself, deprive them of costs against the Plaintiff/Appellant.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Primor plc v. Stokes Kennedy Crowley [1996] 2 IR 459	Framework (“Primor test”) for assessing dismissal/strike-out for delay, focusing on whether proceedings should remain extant after a considerable lapse of time without progress; includes consideration whether delay is excusable.	Referenced in recounting the Court of Appeal’s reasoning and the Supreme Court’s prior decision, in which the test was re-examined and (by the majority) reformulated in a stricter and more structured way, measuring delay initially by reference to the two-year period in Order 122, rule 11.
[2019] IEHC 954	High Court decision striking out the proceedings for inordinate delay, rejecting explanations for delay, and finding prejudice and that the balance of justice favoured dismissal.	Treated as the primary first-instance decision; its costs consequences were preserved and affirmed in this costs ruling.
[2022] IECA 242	Court of Appeal decision affirming strike-out/dismissal for delay, applying the Primor framework, and rejecting excuses for delay.	Treated as the intermediate appellate decision; its costs consequences were preserved and affirmed in this costs ruling.
Kirwan v. Connors [2025] IESC 21	Supreme Court decision dismissing the appeal; agreement that lengthy delay could justify dismissal; majority reformulation of the Primor test with reference to Order 122, rule 11.	Provided the substantive outcome that triggered the costs determination; the public interest dimension of that appeal informed the Supreme Court’s decision to make no order as to Supreme Court costs.

Court's Reasoning and Analysis

The Supreme Court treated the costs question as requiring a distinction between: (i) the High Court and Court of Appeal, and (ii) the Supreme Court.

For the High Court and Court of Appeal, the Court characterised the existing costs orders as “standard” costs orders flowing from the routine application of then well-established case law. Because the Plaintiff/Appellant was unsuccessful in the Supreme Court and the strike-out/dismissal for delay had been affirmed, the Court found no reason to disturb those existing costs orders in favour of both sets of Defendants/Respondents.

For the Supreme Court, the Court considered the costs to be “of a slightly different character” because the appeal had a public interest element: the case became the vehicle for re-examining Primor, it was re-argued before an extended seven-judge court, and the Attorney General participated. In those circumstances, the Court decided it was appropriate to make no order as to Supreme Court costs, reflecting both the public interest dimension and the Court’s view that it was reasonable for the Plaintiff/Appellant to have the issue fully determined by the Supreme Court.

As to the Attorney General (joined as a notice party and effectively acting as amicus curiae), the Court applied what it described as the standard practice that the Attorney General bears his own costs, and saw no reason to depart from that practice.

Holding and Implications

HOLDING: The Court confirmed the existing costs orders in favour of both sets of Defendants/Respondents in the High Court and the Court of Appeal; it made no order as to the costs of the Supreme Court appeal; and it made no order for costs either as against or in favour of the Attorney General.

Implications: The Defendants/Respondents retain their costs awards in the High Court and Court of Appeal, but neither side receives (or pays) a costs order in the Supreme Court. The Attorney General bears his own costs. The ruling is confined to allocating costs following the earlier substantive outcome, and the opinion does not state that it sets any new precedent on costs beyond applying the Court’s described standard approach in cases involving Attorney General participation and a public interest dimension.