High Court awards 25% costs to unsuccessful plaintiffs for proportionate reaction to state negligence despite commercial loss.

[2019] IEHC 417

THE HIGH COURT

[2006 No. 2687 P.]

BETWEEN

PAUL BARLOW, WOODSTOWN BAY

SHELLFISH LIMITED, MICHAEL CROWLEY,

RIVERBANK MUSSELS LIMITED, GERARD KELLY, FRESCO

SEAFOODS LIMITED, TARDRUM FISHERIES LIMITED,

ALEX MCCARTHY AND HALCOME MERCHANTS (IRELAND)

LIMITED TRADING AS ALEX MCCARTHY SHELLFISH

PLAINTIFFS

AND

THE MINISTER FOR COMMUNICATIONS, MARINE

AND NATURAL RESOURCES, THE REGISTRAR GENERAL

OF FISHING BOATS, IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS

JUDGMENT of Mr. Justice Meenan delivered on the 31st day of May, 2019

Background

1. On 22 March 2019 I delivered judgment in this action wherein I dismissed the plaintiffs’ action against the defendants and this

judgment should be read in conjunction with that earlier judgment. At the conclusion of the judgment, I stated: -

“75. As is clear from the foregoing, I have rejected the various claims made by the plaintiffs so the Court must dismiss the

action. In reaching this conclusion, however, it would be wrong for the Court not to recognise the energy, application and

dedication which the plaintiffs have brought to their respective businesses. Though, in my view, the law prevents any

remedy for the plaintiffs, the fact remains that for many years the State permitted vessels registered in Northern Ireland

unlawfully to fish for mussel seed to the detriment of the mussel industry. thus it cannot be said that the plaintiffs were

well served by the State.”

2. The remaining issue before the Court is costs.

Submissions by the defendants

3. The defendants have, correctly, referred to the fact that the Court has found against the plaintiffs on all five issues on foot of

which the plaintiffs made their claim. They submit, therefore, that the Court should apply the standard rule in relation to costs,

namely that “costs follow the event”, as per O. 99, r. 1(3) of the Rules of the Superior Courts. The defendants further submit that

there are no circumstances in this case to justify the Court departing from this rule.

Submissions of the plaintiffs

4. The plaintiffs submit to the Court that it ought to either award the plaintiffs their costs, full or partial, or make no order as to

costs. In the alternative, the plaintiffs seek that the Court only award the defendants a portion of their costs. The grounds for this

application are:

(i) The proceedings are proceedings of public importance;

(ii) The defendants’ conduct of the proceedings added to the costs;

(iii) A costs order against the plaintiffs would cause hardship.

Consideration of issues

5. As to grounds (ii) and (iii) above, I cannot see that either would be a basis upon which to make a costs order as submitted by the

plaintiffs. These proceedings commenced in 2006 and were subject to multiple amendments and alterations over the years. In

particular, these proceedings gave rise to the “Barlow II proceedings” which resulted in the decision of the Supreme Court on 27

September 2016. Though a period of some twelve years has elapsed between the initiation of the proceedings and the trial of the

action, I am not going to, at this stage, apportion blame.

6. On the issue of hardship, though I do accept that an order for costs against the plaintiffs could result in hardship, there is

insufficient evidence of such as to displace the standard rule of costs following the event.

7. The Court was referred to a number of authorities which set out the principles that should be applied in circumstances where,

though unsuccessful, parties are awarded their costs (see Collins v. the Minister for Finance [2014] IEHC 79 and Dunne v Minister for

the Environment, Heritage and Local Government & Ors [2008] 2 IR 775 ).

8. There are a category of cases involving constitutional challenges which raise issues of special and general public importance which

are not brought for personal advantage. The instant case does not fall into this category in that it concerned a claim for commercial

loss and, in reaching its decision, the Court applied well-established principles of law. There are, however, other categories of cases

in which special circumstances can arise. I refer, in particular, to Kerins v. McGuinness & Ors [2017] IEHC 217 wherein an action was

taken arising from the plaintiff’s appearance before the Public Accounts Committee (“PAC”). The applicant’s claim was dismissed but

the High Court (Divisional Court, Kelly P, Noonan & Kennedy JJ.) was very critical of the procedures followed by the PAC. The

applicant was awarded two-thirds of her taxed costs, the Divisional Court having being satisfied, firstly, that the applicant raised

issues of special and general public importance and of some novelty and

“28. The court is satisfied that the institution of these proceedings was a proportionate reaction on the part of the

applicant to the situation arising from what took place before the PAC.”

9. In the instant case, the Supreme Court found that the defendants had permitted unlawful fishing for mussel seed in the territorial

waters of the State for many years. In those years, the State and its agencies correctly identified the economic potential of mussel

fishing but simultaneously permitted mussel seed to be unlawfully fished by vessels registered in Northern Ireland. The plaintiffs gave

evidence as to aggressive fishing practices that were adopted by these Northern Irish registered vessels and the various protests in

which they engaged in an attempt to bring about an end to this situation.

10. This illegal fishing, permitted by the State, did have adverse commercial consequences for the plaintiffs. Notwithstanding this, I

have held that such losses are not recoverable in law. These proceedings were, in my view, a “proportionate reaction” to the unlawful

situation created by the State. Unlike Kerins, however, the within action did not involve constitutional issues or issues of special and

general public importance and further were taken for commercial gain.

11. In light of the foregoing, therefore, I will award the unsuccessful plaintiffs 25% of their taxed costs (or agreed costs) against the

defendants and 100% of the costs of the transcripts of the hearing before this Court. As for the reserved costs, I will make no order

for costs concerning application(s) brought by the plaintiffs to amend the statement of claim, first issued on 10 July 2006. As for the

costs of the motion for discovery, issued in 2010 and reserved by the High Court (Fenney J.) on 23 July 2011, I will award the

plaintiffs 25% of those costs when taxed, if not agreed.