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GDL Management Group Public Ltd Company v Bert's Properties Ltd (Approved)
Factual and Procedural Background
Judgment of Judge [Last Name] delivered on 3 July 2026.
The Defendant is a building contractor who claimed to be a creditor of the Plaintiff in respect of invoices dated 12 August 2025 and 29 September 2025. The Plaintiff is a property company (through a subsidiary) providing homes under the Mortgage to Rent Scheme. Relations broke down in October 2025 with the Plaintiff withholding payment pending completion/certification and the Defendant refusing further works pending payment.
On 7 November 2025 the Defendant served a statutory demand for €489,338.02 threatening a winding-up petition. A petition was presented on 10 December 2025 asserting a debt of €405,750.60 and listed for return on 19 January 2026. The Plaintiff issued substantive proceedings on 6 January 2026 and sought interlocutory relief (an injunction restraining advertisement/prosecution of the petition). An ex parte short service order was obtained on 9 January 2026 for a motion returnable 15 January 2026.
The Defendant filed a replying affidavit and undertook not to advertise the petition; reporting restrictions were temporarily imposed. Shortly before the hearing on 22 January 2026 the Plaintiff informed the Defendant it would pay the corrected demanded sum and pursue recovery in the substantive action. Payment was made through solicitors' offices and the petition was stayed; the substantive action remains to be heard.
Legal Issues Presented
- How should liability for costs be allocated in respect of an interlocutory injunction motion that was rendered moot after the Plaintiff paid the sum demanded in a statutory demand?
- Whether the court should apply the approach exemplified by Dubcap (reserving costs or making them costs in the cause where interlocutory issues overlap with substantive issues) or instead order immediate costs against the party who withdrew/conceded.
- The proper application of the Legal Services Regulation Act 2015 and Rules of the Superior Courts (in particular section 169(1), Order 99 rule 2(1) and Order 99 rule 2(3)) to such interlocutory motions.
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Pembroke Equity Partners v Corrigan [2022] IECA 142 | That section 169(1) of the 2015 Act and Order 99 r.3(1) require the court to have regard to matters in s.169(1) when awarding costs of any action or step. | Referenced to show the indirect application of s.169(1) to interlocutory motions and the need to consider conduct and circumstances in awarding costs. |
| Meta Platform Ireland Ltd v Data Protection Commission [2026] IEHC 8 | Interpretation of Order 99 r.2(3) and that making costs "costs in the cause" counts as an award of costs. | Used to support the proposition that costs-in-the-cause is an adjudication on costs and relevant to reserving costs. |
| Dubcap Ltd v Microchip Ltd (Unreported, Supreme Court, 9 December 1997) | The approach (here called the "Dubcap approach") of reserving costs where interlocutory injunction issues overlap with substantive merits likely to be revisited at trial. | The court considered and applied the Dubcap approach as part of its costs analysis for interlocutory injunctions of this character. |
| AIB v Diamond (Unreported, High Court (Clarke J), 7 November 2011) | Distinction between interlocutory applications turning on merits and those turning on matters not revisited at trial (e.g. adequacy of damages/balance of convenience). | Cited to explain when reserving costs is appropriate where merits overlap with interlocutory issues. |
| ACC Bank plc v Hanrahan [2014] 1 IR 1 | Application of related principles in analogous procedural contexts (summary judgment) regarding costs. | Referenced as supporting authority for treating interlocutory costs in light of substantive issues. |
| Ryanair v Aer Rianta (Unreported, Supreme Court, 26 October 2001) | Example of departing from the Dubcap approach where an interlocutory application had no foundation in law. | Used to illustrate exceptions where costs can be awarded against the applicant despite the general tendency to reserve costs. |
| Keogh v AV Pound Co. Ltd [2021] IEHC 640 | Guidance where mootness arose and was not readily resolvable; considers whether mootness was unilateral/concession and relation to reserving costs. | Relied upon to show that where merits overlap with interlocutory issues the court may reserve costs and that examination of cause of mootness is not always necessary. |
| Tekenable Limited v Morrissey [2012] IEHC 391 | Decision to reserve costs where interlocutory undertaking/compromise mooted the motion and issues remained for trial. | Used as support for reserving costs where the court had not adjudicated merits and issues would be revisited at trial. |
| Godsil | Authority cited for proposition that withdrawal or concession can operate as an "event" attracting the general rule that costs follow the event. | Referred to when discussing the effect of withdrawal/concession on costs. |
| Cunningham | Referenced in comparison to other mootness/concession authorities (distinguished in Keogh). | Noted as part of the jurisprudential context on mootness and withdrawal/concession. |
| Irish Bacon Slicers Limited v Weidemark Fleischwaren GmbH & Co [2014] IEHC 293 | Authority where a late concession/undertaking led to an immediate award of costs for policy reasons (to discourage late concessions that delay costs resolution). | Considered as a mirror of the present facts; discussed and distinguished on the basis of factual differences. |
| Rogerson v O'Dwyer [2025] IEHC 70 | Case where a plaintiff conceded the interlocutory motion on affidavit and the court awarded costs against the plaintiff; illustrates circumstances where merits and concessions inform costs. | Discussed to show situations where the Dubcap approach may be displaced by the clear unavailability of relief or concessions. |
Court's Reasoning and Analysis
1. Classification: The court identified categories (withdrawal, concession, procedural strike-out, default award, mootness, compromise) to frame approaches to costs.
2. Mootness and proximate cause: The petition became moot because the Plaintiff paid the demanded sum; that payment also mooted the interlocutory injunction. The court treated the motion as effectively withdrawn by the Plaintiff's unilateral act.
3. Statutory and procedural framework: The court applied section 169(1) of the Legal Services Regulation Act 2015 and Order 99 rules, noting the general presumption that costs follow the event but also the duty to consider conduct and circumstances; Order 99 r.2(3) requires an award of costs unless just adjudication is impossible, and costs-in-the-cause counts as an award.
4. The Dubcap approach: Where interlocutory injunction issues overlap with substantive merits likely to be revisited at trial, the court will often reserve costs (the Dubcap approach). The court surveyed authority for and against immediate awards in withdrawal/concession/mootness scenarios and acknowledged exceptions (e.g. hopeless motions or applications without foundation).
5. Application to the present facts: The court considered hypothetical trial outcomes (Plaintiff wholly vindicated versus Plaintiff unsuccessful or only partially successful) and concluded those divergent possibilities meant an immediate costs award against the Plaintiff risked injustice. The court was not satisfied the injunction motion was hopeless or that the Plaintiff's motive justified departing from Dubcap. The fact the Defendant initiated the petition weighed against imposing immediate costs on the Plaintiff.
6. Conclusion as to costs: Balancing these factors, the court decided reserving the costs (rather than ordering costs for the Defendant) was appropriate because the substantive action's outcome may not map directly onto the interlocutory costs question.
Holding and Implications
Costs reserved to the trial of the proceedings.
Implications: The immediate effect is that no party is awarded the costs of the Plaintiff's interlocutory injunction motion now; those costs will be determined at the trial of the substantive proceedings. The opinion does not purport to create new binding precedent beyond its application of established principles and the exercise of the court's discretion in the circumstances of this case.
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