Supreme Court dismisses appeal on costs, ruling that costs follow the event as the overriding start point.

An Chúirt Uachtarach

The Supreme Court

O’Donnell J Dunne J Charleton J

Supreme Court appeal number: S:LE:IE:2012:000227 [2021] IESC 000 High Court Record Number: 2011 No. 15095 P

Between

Michael Hoey Plaintiff

- and -

Waterways Ireland Defendant

Ruling of the Court as to costs, delivered on Tuesday 13 July 2021

1. McKechnie J in Godsil v Ireland [2015] IESC 103; [2015] 4 IR 535 stated the principle that costs follow the event as the “overriding start point on any question of contested costs.” This is in Order 99 rule 2 of the Rules of the Superior Courts and has received statutory recognition in s 169(1) of the Legal Services Regulation Act 2015, which provides that where the party seeking costs has been “entirely successful” in the proceedings, such party “is entitled to an award of costs [against the unsuccessful party] unless the court orders otherwise...”. Noonan J in Harrison v Charleton [2020] IECA 197 at paragraph 5 of his judgment was of the view that: “ ...whether one adopts the criterion of costs following the event, or of being entirely successful, under either rubric the [successful party] should be entitled to his costs unless the [unsuccessful party] can demonstrate that there are special reasons why the court should depart from the normal rule”.

2. In determining whether to order otherwise, the court may have regard to the “nature and circumstances of the case” and “the conduct of the proceedings by the parties”, including the matters set out at s 169(a) to (g), which in general are declaratory of the state of the prior law, and which encompasses conduct both before and during the proceedings, whether it was reasonable for a party to raise, pursue or contest one or more issues, and the manner in which the parties conducted all or any part of their cases. In public interest cases there may be special rules which apply related to the public benefit to the completion of litigation on an issue related to constitutional interpretation but these are exceptional.

3. On the motion issued of 5 December 2011, Murphy J in the High Court refused the injunctive reliefs sought by Mr Hoey. On 27 April 2012 costs were considered and the costs of the motion awarded to Waterways Ireland.

4. The case was heard on appeal and by judgment of 28 May 2021 [2021] IESC 34 dismissed the appeal from the High Court. The barge at the centre of this controversy is by undertaking letter preserved pending the outcome of the proceedings by Waterways Ireland. As to the reasonableness of not relying on a statutory power, the Court makes no comment.

5. Correspondence has set out the position of the parties. By letter dated 1 June 2021, Waterways Ireland solicitor wrote to Mr Hoey:

In circumstances where the Appeal has been dismissed, Waterways Ireland is entitled to an order for its costs in relation to the Appeal. In addition, the High Court Order made on 27 April 2012 included an order that the Plaintiff pay the Defendant’s costs of and incidental to the Motion and Order to be taxed in default of agreement subject to a stay of execution for three months. In circumstances where the Appeal has been dismissed, our position is that the terms of the order should reflect that the High Court Order, including the order for costs, is upheld. Accordingly, we suggest, subject to the Court, that the appropriate terms of the order to be made are: that the Plaintiff’s Appeal is dismissed; that the Order of the High Court (Murphy J.) made on 27 April 2012, including the order for costs, is upheld; and that the Plaintiff pay the Defendant’s costs of and incidental to the Appeal to be adjudicated in default of agreement.

6. To this, Mr Hoey replied by letter dated 4 June 2021 and indicated that he agreed to the draft order proposed on behalf of Waterways Ireland, subject to the provisos that:

1. For the court to put a stay on the order for costs until the outcome of the full hearing has been reached.

2. Given that your client had the option to lift the barge into my boatyard using the cradle which I was preparing for such a lift coupled with the fact that you did not make an application to have the case struck out for want of prosecution the order should include; That the barge 43M is not to be disposed of until the outcome of the full hearing.

3. I will be asking the court to include a statement with the order to the effect that my motivation in pursuing the case is a genuine effort to try to protect my navigation and property rights and to determine whether or not my damages under section 1.(2) of the Water Supplies Act of 1942 (which I have yet to detail)

against Kildare County Council for the loss of water to the navigation is temporary or permanent under sections 3, 14 and 15 of the Water Supplies Act of 1942.

7. Submissions followed and are in standard form. In the quoted letter, Mr Hoey also said:

It is my intention to proceed as soon as possible with the full hearing of the case and if you would like to take charge of moving the case and/or to have the hearing expedited you will have my full co-operation.

I have commenced preparing the essential parameters of the case which centres on whether or not Waterways Ireland is empowered to dispose of the water required for navigating or allow third party interference with sources of water (which the court did not address) and the consequences of your client not issuing an Interference Notice having been advised by Kildare County Council to issue an Interference Notice for the Barrow Surface Water Abstraction. I undertake to commence correspondence within two weeks and I look forward to having the case heard as soon as possible and I await your responses.

8. The Court has no intention of commenting on statutory duties, use thereof or the motivations of the parties. That is for the trial. Nor will the Court indicate anything about the barge and keeping it or moving it. As to how wider rights as to depth of navigation etc might come into this case, that is a matter not argued in this Court. Finally, moving the barge, how, when, why and with what is outside the scope of any legal appeal.

9. This was an interlocutory motion that was lost. Costs in the High Court and on appeal to this Court follow the event. As for a stay, Mr Hoey suggests a full stay until litigation is ended and Waterways Ireland three months. The Court considers with Covid delays, even with case management and focus on essential issues only, as the main judgment requires, a year’s stay is reasonable. But this case can not be delayed any longer. The parties must seek to resolve these now very old issues. There is liberty to apply to the High Court and hopefully the parties will seek a date in early course, which is a matter for the High Court. As mentioned in the judgment, the judicial time allowed is subject to the High Court but, as a matter of principle, as the judgment herein notes, should not be enabled to extend beyond its proper limits.