Summary of Judgment — High Court (Record Nos. 2018/8457P & 2018/8458P)

Factual and Procedural Background

Judge Egan previously held that wind turbine noise (WTN) from one of two turbines operated by the defendant caused a nuisance to the plaintiffs during night hours and quiet waking hours and that the plaintiffs were entitled to an injunction and damages. The defendant has indicated an intended appeal and sought a stay; a separate judgment addressed the stay. This judgment resolves costs for three trial modules and the plaintiffs' application for payment on account of costs pending the defendant's appeal.

Legal Issues Presented

1. How costs should be allocated under sections 168–169 of the Legal Services Regulation Act 2015 and Order 99 of the Superior Court Rules given the parties' varying degrees of success.
2. Whether the plaintiffs were "entirely successful" or only "partially successful" within s.169(1) and the consequences for costs.
3. Whether an order for payment on account of costs should be made pending the defendant's appeal.

Arguments of the Parties

Plaintiffs' Arguments

• The plaintiffs contended they were "entirely successful" because they obtained the central relief sought (finding of nuisance, injunction and damages) and so are prima facie entitled to full costs unless the court orders otherwise.
• They urged a broad-brush approach to assessing success (analogous to Veolia and Connelly) and claimed no conduct-based reasons existed to reduce costs; they accepted only that the defendant should recover costs of the application to amend to add personal injury claims.

Defendant's Arguments (Company A)

• The defendant submitted the plaintiffs were only "partially successful" because the court found nuisance arose only from one turbine (T2) and only during sensitive periods, and because the plaintiffs failed on several discrete claims (shadow flicker as nuisance, negligence, constitutional claim, s.160, and certain personal injury and quantum heads).
• The defendant argued the plaintiffs unduly lengthened the hearing, sought reductions in costs for specific modules and heads (proposing percentages or no order), and sought full costs for issues on which it succeeded.
• The defendant opposed payment on account while it bona fide intended to appeal liability, remedy and quantum.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by summarising the statutory framework (ss.168–169, O.99) and judicial guidance. The first inquiry was whether any party was "entirely successful" under s.169(1). The court concluded the plaintiffs were not "entirely successful" because they failed on distinct, material claims (notably the s.160 application and aspects of their personal injury claims) that were "separate and distinct" and consumed appreciable court time.

Accordingly both sides were characterised as "partially successful." The court applied the established multi-factor, pragmatic approach: identify separate and distinct issues, assess whether they materially increased time/costs, consider reasonableness of having raised those issues, and have regard to conduct and other s.169(1) factors.

Module-by-module application:

• Module 1 (liability): plaintiffs prevailed on the central nuisance issues (T2 nuisance during sensitive periods) and the court awarded the plaintiffs 100% of costs for the determination of the WTN nuisance claim. Exceptions: the discrete s.160 planning claim was a separate and material issue on which the plaintiffs failed; the court awarded the defendant the costs of the planning experts' hearing days and related discrete expenses. The personal injury claims were treated as separate and distinct; the court declined to grant the defendant full costs for defending them, finding some medical evidence was reasonably raised and also relevant to nuisance; it made no order as to costs for the personal injuries claim (equating this to three days of hearing and disallowing related experts' report costs and discovery costs). Costs of the plaintiffs' amendment application to add personal injury claims and the associated costs application were ordered to the defendant.
• Module 2 (remedy/injunction): although the injunction granted was not in exactly the terms sought, the plaintiffs succeeded on remedy and the defendant failed to resist the injunction; the court awarded the plaintiffs full costs of module 2.
• Module 3 (assessment/quantum): the court awarded plaintiffs full costs of general damages, NF property devaluation and HH stigma damages, observing the defendant had not made costs-protective offers and the quantum disputes were not separate and distinct issues requiring a costs departure. For specific unsuccessful heads: the defendant recovered limited costs for Mr. Rollo's past and future accommodation claim (2 hours) and for the reinstatement claim (costs tied to plaintiffs' loss adjuster; 2 hours awarded to defendant). The court refused to make deductions for aggravated/exemplary damages claims, finding them not unmeritorious and of marginal cost consequence.

Other practical directions: plaintiffs awarded costs of two mediations; where defendant recovered costs the court limited recovery to one senior and one junior counsel; court noted several hearing days were cut short for unavoidable reasons and directed that fact be considered in adjudication.

On the plaintiffs' application for payment on account of costs pending appeal, the court reasoned that (i) the application sought payment pending the defendant's intended appeal on liability/remedy/quantum rather than merely pending adjudication of costs, (ii) such an order would be a departure from usual practice when liability to pay costs is not finally determined and (iii) no precedent was identified supporting payment out where a defendant bona fide intends to appeal liability. The court exercised its discretion to refuse payment out and stay the order for costs together with adjudication pending the appeal.

Holding and Implications

Core Ruling: The plaintiffs were held to be "partially successful"; costs are awarded largely to the plaintiffs with specified carve-outs in favour of the defendant, and the plaintiffs' application for payment on account of costs pending appeal is refused; the costs order and adjudication are stayed pending the defendant's appeal.

Implications:

• Direct effect: the plaintiffs recover most costs (full costs for the nuisance determination and module 2 and most module 3 heads) subject to specific deductions and discrete awards to the defendant (planning experts' hearing days, costs of the amendment application, limited hourly costs for certain unsuccessful heads). The defendant's ability to recover costs is limited in quantum and counsel numbers recoverable are capped as directed.
• Payment on account: no immediate interim payment is ordered; costs adjudication and enforcement are stayed pending appeal.
• Precedential effect: the judgment applies established s.168–169 and O.99 principles and demonstrates a pragmatic, module-by-module, broad-brush approach to splitting costs where parties are partially successful; it does not create a new rule but illustrates allocation practice in complex WTN nuisance litigation.