Costs ruling allows 80% of appeal costs to plaintiff as she was not entirely successful on liability.

THE COURT OF APPEAL

APPROVED

NO REDACTIONS

Record Number: 2022/140

High Court Record Number: 2019/7056P

Noonan J. Neutral Citation Number [2023] IECA 69

Haughton J. Allen J.

BETWEEN/

GUNTA KADEGE

RESPONDENT/PLAINTIFF

-AND-

DUNNES STORES

APPELLANT/DEFENDANT

COSTS RULING of Mr. Justice Noonan delivered on the 27th day of March 2023

1. The principal judgment of the Court was delivered on the 15th February, 2023 ([2023] IECA 27). The defendant appealed the order of the High Court both in relation to liability and quantum. This Court rejected the appeal on liability but allowed the appeal on quantum, reducing the plaintiff’s damages from €160,901 to €140,901. At paragraph 59 of the judgment, the parties were directed to deliver written submissions on costs and have now done so.

2. Given that outcome, the defendant contends that the appropriate order is for the court to make no order as to the costs of the appeal. It makes that submission on the essential basis that the plaintiff has not been “entirely successful” as that expression is used in s. 169 of the Legal Services Regulation Act, 2015. In the alternative, the defendant says that the Court should make a reduced costs order in favour of the plaintiff limited to 50%.

3. The plaintiff contends that she has been entirely successful in the appeal given that no offer was made at any time by the defendant which she had to “beat” and further that the amount of general damages awarded by this court exceeded that contended for by the defendant. In quantum appeals, the question not uncommonly arises as to how costs should be allocated where there is a reduction in the award. The appropriate approach of the court in such circumstances was discussed in detail in Higgins v Irish Aviation Authority [2020] IECA 277.

4. I do not think it is necessary for the purposes of this ruling to analyse that authority in any detail, other than to say that it demonstrates that as a general rule, in an appeal by a defendant on quantum where the plaintiff suffers a reduction in the award, the approach of the Court has been that if the defendant has not made an offer that equals or exceeds the amount awarded on appeal, and if the plaintiff has not indicated a willingness to accept a sum equal or less than that awarded on appeal, it will normally be appropriate to make no order as to the costs of the appeal. That approach was followed in reliance on Higgins more recently in Meehan v Shawcove Limited & Ors. [2022] IECA 247. There is no suggestion here that the defendant made such an offer or the plaintiff, a counter-offer.

5. It is clear by any metric that by far the major issue in this appeal was the question of liability. As the medical reports on both sides were agreed, the trial judge was not required to hear any viva voce medical evidence. There was little or no debate on the issue of quantum in the High Court.

6. On appeal, the vast majority of the written and oral submissions on both sides were taken up with argument on the liability question. This is reflected in the judgment of this Court where the quantum issue is considered in a short section at the end. Given the facts I have identified and the fact that the plaintiff cannot be said to have been “entirely successful” in this appeal, it would in my judgment be inappropriate for the plaintiff to be awarded the full costs of the appeal which she seeks. In that regard, I am satisfied that a modest reduction in the plaintiff’s costs is appropriate to reflect the outcome and I would accordingly direct that the plaintiff be entitled to 80% of the costs of the appeal. The plaintiff will be entitled to her full costs of the hearing before the High Court, but based on the award of this Court.

7. As this ruling is delivered remotely, Haughton and Allen JJ. have authorised me to record their agreement with it.