Court of Appeal dismisses appeal against costs order, ruling appellant failed to meet reasonable offer.

APPROVED

NO REDACTION NEEDED

THE COURT OF APPEAL

CIVIL

Appeal Number: 2025/79

Neutral Citation Number [2025] IECA 150

Whelan J. Faherty J. Allen J.

BETWEEN/

EVERYDAY FINANCE DAC

PLAINTIFF

- AND –

RAYMOND BRADLEY, TERENCE DOYLE AND SINEAD BYRNE (PRACTISING

UNDER THE STYLE AND TITLE OF MALCOMSON LAW SOLICITORS), PHILIP

MORRISSEY AND THE PROPERTY REGISTRATION AUTHORITY

DEFENDANTS

JUDGMENT of Mr. Justice Allen delivered on the 25th day of July, 2025

1. This is an appeal by Mr. Philip Morrissey against an order of the High Court (the President) made on 24th July, 2024 by which he was ordered to pay the costs of a motion which was brought by Everyday Finance Limited and Allied Irish Banks plc (“AIB”) for a series of orders to give effect to a settlement agreement. The application was opposed by Mr. Morrissey but the orders sought were made by the High Court.

2. Mr. Morrissey, who represents himself, has filed a huge amount of documentation but the issue that properly arises on the appeal is net.

3. The background to the motion is set out in detail in a judgment of the President delivered on 14th April, 2023 ([2023] IEHC 179).

4. From at least 2009 AIB provided loan facilities to Dan Morrissey (IRL) Limited (“DMIL”). The lending was supported by various security, including a charge over a quarry owned by DMIL and a personal guarantee of Mr. Morrissey.

5. The lending was the subject of a Facilities Agreement dated 20th August, 2009, as amended by a number of amendment and restatement letters, including a letter of 3rd May, 2011 by which Mr. Morrissey agreed to provide a legal charge over lands owned by him personally to secure his liability under his guarantee. For whatever reason, that legal charge was not put in place.

6. When DMIL got into financial difficulties, AIB called up the loan and Mr. Morrissey’s guarantee, and appointed receivers over the company’s property. This gave rise to a number of actions, including an action by AIB against Mr. Morrissey for the amount due and owing on foot of his guarantee; and two actions by Mr. Morrissey against DMIL, the receivers, and a company called Plazamont (which had been granted a licence by the receivers to exploit part of the quarry) arising out of the conduct of the receivership. Mr. Morrissey was initially represented in those proceedings by Malcomson Law Solicitors.

7. On 17th December, 2015 Mr. Morrissey consented to summary judgment in favour of AIB in the sum of €24,970,000 and costs. Earlier in the morning on the same day, he had granted a charge to Malcomson Law over the property which he had previously – by the letter of 3rd May, 2011 – agreed to charge to AIB, to secure his liability to Malcomson Law in respect of costs. By these proceedings, which were commenced in March, 2017, AIB sought to set aside the charge to Malcomson Law, and to establish and enforce the equitable charge which it contended was created by Mr. Morrissey’s agreement to give it a legal charge.

8. By a global deed of transfer dated 14th June, 2019, AIB transferred the loan facilities and security to Everyday Finance DAC.

9. On 31st January, 2020 – following mediation in December, 2019 – a settlement agreement was executed by AIB, Everyday, Mr. Morrissey, the receivers, and Plazamont. Malcomson Law was not party to the mediation or the settlement. By the settlement agreement Mr. Morrissey agreed to consent to a variety of orders in these as well as the other proceedings and by notice of motion issued on 6th February, 2020, Everyday applied to the High Court for various orders, the first of which was an order substituting it as plaintiff in these proceedings.

10. The motion – as the President put it – took various twists and turns. In the circumstances fully set out in the judgment of the President, the motion was opposed by both Mr. Morrissey and Malcomson Law. For the reasons given by the President in his judgment which was delivered electronically on 14th April, 2023 he decided that he should make the orders sought and listed the matter for 12th May, 2023 to deal with the final form of order and costs. On 12th May, 2023 the President made the substantive order and left over the question of costs.

11. On 13th June, 2023 the President heard the parties in relation to costs. Malcomson Law did not oppose the making of an order for costs but asked that the costs be “measured and apportioned” between them and Mr. Morrissey, rather than being awarded on a joint and several basis.

12. Mr. Morrissey opposed the making of an order for costs but his argument was directed to the merits of the underlying dispute with AIB and the receivers. He had settled those disputes on 31st January, 2020 and the President had held that he was not entitled to withdraw his consent to the settlement. Mr. Morrissey also argued that any order for costs against him should be limited to the issues with which he was concerned. The High Court reserved judgment on the question of costs.

13. By separate notices of appeal dated 6 July, 2023 Mr. Morrissey appealed against the judgment of the President of 14th April, 2023 and consequent order of 12th May, 2023, and against the President’s refusal of an application to review or set aside his substantive judgment. Those appeals were heard together on 6th November, 2023 and were dismissed for the reasons given in the judgment of Whelan J. delivered on 8th March, 2024. ([2024] IECA 54) Mr. Morrissey was ordered to pay the respondent’s costs. Because the notices of appeal were identical and the appeals had travelled and been heard together, the Court made one order for costs.

14. For the reasons given in his judgment on 7th June, 2024 – to which I will return – the President decided that AIB/Everyday was entitled to an order for costs against Mr. Morrissey in respect of the High Court application, and that the order for costs should be on the usual joint and several basis.

15. The matter was again listed for final orders on 19th June, 2024 from when it was put back to 24th July, 2024. By then the dispute between Everyday and Malcomson Law had been settled. By the consent of Everyday and Malcomson Law, the arrangements which had been put in place by the substantive order to protect Malcomson Law’s position were lifted; and as between Everyday and Malcomson Law the action was struck out with no order as to costs, and all existing costs orders between those parties were vacated. As against Mr. Morrissey, an order was made for the payment of the costs of the motion to enforce the settlement.

16. In his judgment of 7th June, 2024 on the question of costs ([2024] IEHC 347) the President found that AIB/Everyday had been entirely successful in their application and that Malcomson Law and Mr. Morrissey had been wholly and entirely unsuccessful in resisting the application and that there was no basis on which AIB/Everyday should be deprived of their costs. For the reasons which he set out, the President rejected the argument advanced on behalf of Malcomson Law that he should seek to allocate responsibility for the costs between the Malcomson Law defendants and Mr. Morrissey, and awarded the costs on a joint and several basis. For some reason the High Court order was not perfected until 4th March, 2025.

17. By notice of appeal filed on 1st April, 2025 Mr. Morrissey appealed against the judgment of 7th June, 2024 and order of 24th July, 2024 on the single ground that the judge was wrong in law and in fact in ordering him to pay the costs of AIB and Everyday. He asked that the Court should substitute “an order for the adjudication of the costs of Malcomson Law and for the apportionment of the costs of Allied Irish Banks and Everyday Finance DAC as between the fourth named defendant and Malcomson Law and an order for the adjudication of the plaintiff and Allied Irish Banks plc costs of the motion.” The notice of appeal was served on the Malcomson Law defendants as well as on Everyday.

18. In a short respondents’ notice, the Malcomson Law respondents made the point that as between them and Everyday, the case was settled; that no notices claiming contribution or indemnity had been served; and that the notice of appeal did not identify any point of law that was relevant to them.

19. Everyday’s respondent’s notice was similarly succinct: making the point that it had been entirely successful on every issue and that Mr. Morrissey had been entirely unsuccessful. The costs order, it was said, did not fall outside the range of decisions that were open to the High Court.

20. Mr. Morrissey’s written submissions were not really directed to the question of the costs of the High Court application. He suggested that he had recently read in more detail the documents discovered by the Malcomson Law on 1st November, 2018 and sought to challenge a bill of costs raised by them. For present purposes, that assertion is entirely irrelevant and could not be a valid basis for interfering with the costs order obtained by Everyday.

21. Similarly, Mr. Morrissey’s belatedly expressed dissatisfaction with the advice he was given by Malcomson Law at the time he consented to summary judgment on 17th December, 2015; any issue as to payments previously made by him and/or by DMIL to Malcomson Law in respect of or on account of fees; and any issue as to the conduct of the receivership or the amount of legal fees paid by the receivers to their solicitors, are entirely irrelevant to the only issue before the Court: which is whether the High Court was correct to make the award of costs which it made against Mr. Morrissey, in favour of AIB/Everyday.

22. In his written submissions Mr. Morrissey also sought to challenge what he referred to as the Malcomson Law lien – which I understood to mean the deed of charge which he executed in favour of Malcolmson Law on the morning of 17th December, 2015. The validity of that charge and the extent of the liability secured by it were not relevant but Mr. Morrissey made the point that the existence of the charge which had been registered over his land in favour of Malcomson Law had prompted Everyday to join Malcomson Law and that such joinder might have increased the burden of the costs order made against him. He also contended that because Malcomson Law had contested the proceedings, the case had lasted a long time and unnecessary costs were incurred. Mr. Morrissey complained that the terms of the settlement between Everyday and Malcomson law were kept secret from him and that although the President had indicated that he intended to “apportion” the plaintiff’s costs between him and Malcolmson Law, he eventually awarded all of the costs against him for – he said – unexplained reasons.

23. I am bound to say that when I first read into this appeal it appeared to me that Mr. Morrissey might have a point. As the President’s judgment on the substantive application shows, Mr. Morrissey was represented by solicitors and counsel at the time of the settlement agreement and on several occasions between 31st January, 2020 and 21st May, 2020 indicated

– through his counsel – that he was consenting to the orders sought. It was not until 26th June, 2020 that Mr. Morrissey changed his mind, discharged his solicitors, and sought to extricate himself from the settlement. While it is undoubtedly the case that Mr. Morrissey was wholly unsuccessful in opposing the motion, it seems to me that it is no less clear that but for the intervention of Malcomson Law, the orders sought by Everyday would have been made on the first return date.

24. Mr. Morrissey is incorrect when he suggests that the President indicated that he intended to apportion the costs. That is precisely what the President said he would not do. However, it seems to me that without – as the President put it – “salami slicing” it is fairly clear that the costs of the first five listings can be attributed solely and exclusively to the opposition of Malcomson Law. Thereafter, I respectfully agree with the President – as matters then stood – there could have been no warrant for trying to separate the respective responsibility of Malcomson Law, on the one hand, and Mr. Morrissey, on the other, for the costs incurred by Everyday in pressing its motion. That said, it must be acknowledged that it was Malcomson Law who made the running on the argument that the costs should be apportioned and since it was their intervention which had blocked the making of the orders on the return date, I agree with the President that there was nothing unfair in requiring the Malcolmson Law defendants to bear the entire costs of the opposition. However, if there was nothing unfair in requiring the Malcomson Law defendants to bear the entire costs, it does not necessarily follow that there was nothing unfair in requiring Mr. Morrissey to do so, a fortiori after Malcomson Law were released. The costs judgment shows that Mr. Morrissey also contended that the costs should be apportioned but not that he spelled out clearly why he contended this should be so.

25. At the oral hearing of the appeal Mr. Morrissey sought to reopen his grievances as to the exploitation of the quarry, the release of co-guarantors, the security which he gave to AIB, and the conduct of the receivership. All of these issues were compromised by the settlement agreement of 31st January, 2020. All that was in issue on the appeal was whether the President was correct in his allocation of the costs of the application for such orders as were necessary to implement the settlement agreement.

26. A good deal of Mr. Morrissey’s ire was directed to Malcomson Law. He sought to ventilate his grievances as to the circumstances in which he had executed the deed of charge over his lands and the amount of costs which Malcomson Law had previously claimed was secured by the charge. These were matters exclusively between Mr. Morrissey and Malcomson Law and were not relevant to the question of Mr. Morrissey’s liability for Everyday’s costs.

27. Malcomson Law were named as a respondent to the appeal, and notwithstanding their protestations in their respondents’ notice that they were not properly party to the appeal, they were not released. All differences between Everyday and Malcomson Law were eventually resolved sometime between 7th June, 2024 – when the costs judgment was delivered – and 24th July, 2024 – when the action against Malcomson Law was struck out and all previous costs orders vacated. Malcomson Law had no interest in whether the costs order in favour of Everyday against Mr. Morrissey was upheld, set aside, or varied. There was no question that Malcomson Law might be fixed with responsibility for all or any part of whatever Mr. Morrissey’s liability might be found to be for Everyday’s costs. There is clearly a dispute as to the extent – if any – of Mr. Morrissey’s liability to Malcomson Law on foot of a bill of costs which they delivered in respect of legal work said to have been done by them for him, but that is a separate matter. There was no issue before the High Court and no issue before this Court as to the rights and wrongs of Malcomson Law’s bill of costs against Mr. Morrissey.

28. Mr. Morrissey’s written submissions were filed on 2nd May, 2025. It was not until I came to the written submissions filed on behalf of Everyday that it became apparent that by letter dated 10th April, 2025 Everyday had made an open offer to Mr. Morrissey to agree to the High Court costs order being vacated and to the appeal being struck out with no further order. The 10th April, 2025 was a little more than a week after the notice of appeal was filed and about four weeks before the first return date. This, it was said, would have given Mr. Morrissey everything he could reasonably hope to have achieved on the appeal. I agree. But the offer goes to the costs of the appeal rather than the substance.

29. The single ground of appeal articulated suggests that Mr. Morrissey’s case was that he should not have been ordered to pay any costs. However, in setting out the precise form of the order sought if the appeal should succeed, Mr. Morrissey did not suggest that there should be no order as to costs. With no disrespect, the form of order sought is rather jumbled but the substance of it is that Everyday’s costs should be apportioned between him and Malcolmson Law, and that Mr. Morrissey should pay only his own share. At the risk of salami slicing, Everyday’s offer of 10th April, 2025 did not cover the stamp duty which Mr. Morrissey had paid on his notice of appeal but it would have relieved Mr. Morrissey of a more or less acknowledged liability for a substantial share of the High Court costs.

30. Everyday’s position on the appeal was that the order for costs made by the President was well within the range of decisions which was open to him. Everyday – it was submitted

– was entirely successful and was presumptively entitled to an order for its costs. I agree. The President – it was submitted – had a more intimate knowledge of the detail of the progress of the application than this Court. I agree. Counsel emphasised that this Court should not interfere with the decision of the High Court unless the appellant could demonstrate an error of principle, but agreed, in response to a question from the Court, that the Court could and should intervene if such intervention was shown to be in the interests of justice.

31. As one would expect, the judgment of the High Court on the substantive application ([2023] IEHC 179) focussed on the substantive issues ultimately in dispute but it underlined the fact that as long as Mr. Morrissey was represented by solicitors and counsel, he was consenting to the orders sought. It was not until June, 2020 that Mr. Morrissey changed his mind and tried to withdraw his consent to the settlement agreement. In those circumstances, it is difficult to see why Mr. Morrissey might be fixed with the costs of the application for as long as he was not opposing it.

32. From and after 26th June, 2020 the application was opposed by both Malcomson Law and Mr. Morrissey. The myriad issues raised by both and each were so complex that the judgment on the substantive application ran to 93 pages. The core issue on the costs application was whether the costs orders against Malcomson Law and Mr. Morrissey should be joint and several or should be confined to the issues which they each had raised and lost. In his judgment on the costs issue ([2024] IEHC 347) the President found that there would be nothing unfair or unjust in ordering that Malcomson Law and Mr. Morrissey should be responsible for the costs of Everyday on a joint and several basis. The bottom line – he said – was that they had each opposed the application and had been unsuccessful in their opposition. In his summary of conclusions, at para. 57, the President said that:- “For the reasons I have explained earlier, it is not appropriate or fair at this stage to seek to allocate responsibility for the costs to which AIB/Everyday are entitled as between the Malcomson Law defendants and Mr. Morrissey.” [Emphasis added.]

33. The costs order which the President found was the appropriate order would have allowed Everyday to recover its costs from each or either of Malcomson Law and Mr. Morrisey but would have left open a claim by either to recoup from the other a contribution to any payment they or he might have made in respect of the costs.

34. As I have said, the President indicated (at para. 59 of the costs judgment) that the matter would be listed for the making of final orders on 19th June, 2024 and it was adjourned from then until 24th July, 2024. By 24th July, 2024 Everyday and Malcomson Law had settled their differences on terms including that Everyday would forego the costs order to which the President had decided that it was entitled. This, it seems to me, represented a highly significant change in the landscape.

35. It is common case that Mr. Morrissey was neither privy nor party to the settlement between Everyday and Malcomson Law. Mr. Morrissey in his written submissions suggests that:- “The President indicated that he intended to apportion the plaintiff bank’s costs between [him] and Malcomson Law but on the final day he awarded all of the costs against [him] for unexplained reasons.” The suggestion that the President indicated that he intended to “apportion” Everyday’s costs is obviously wrong but it is the fact that on 24th July, 2024 an order was made awarding all of the costs against Mr. Morrissey – alone – rather than the joint and several order which the President had indicated he would make. Presumably the President was told no more than that the action between Everyday and Malcomson Law had been settled and that – apart from dismantling the arrangements for the preservation of the proceeds of sale of the land – the only order required was a costs order against Mr. Morrissey.

36. The effect of the order under appeal is that Mr. Morrissey is exposed to pay the costs incurred by Everyday in meeting Malcomson Law’s opposition without the possibility of recourse to Malcomson Law in respect of that liability. That in my firm view would not be just. I do not disagree with the submission of counsel for Everyday that in the landscape as it stood on 7th June, 2024 when the costs judgment was delivered, the decision of the President was within the range of decisions which was reasonably open to him. However, I am persuaded that on 24th July, 2024 the President was led into error when he was asked to make an order against Mr. Morrissey alone in respect of all of Everyday’s costs, without due consideration for the abandonment of the claim for costs against Malcomson Law.

37. I would add for completeness that it was not contended by Mr. Morrissey that the effect of the settlement between Everyday and Malcomson Law was to release Mr. Morrissey from any liability in respect of costs, rather the argument was that Mr. Morrissey’s liability should be confined to the costs occasioned to his unsuccessful opposition to the orders sought.

38. In the circumstances, as between Mr. Morrissey and Everyday, I would allow Mr. Morrissey’s appeal and substitute an order for the adjudication of Everyday’s costs of the motion against Mr. Morrissey – excluding, for the avoidance of doubt, all issues raised by Malcomson Law – and for payment by Mr. Morrissey of those costs when adjudicated and ascertained.

39. By itself, the single ground of appeal might have been construed as an appeal against the making of any order for costs against Mr. Morrissey, but taken in conjunction with the order sought from the Court of Appeal in the event of the appeal succeeding, the substance of it was an appeal on the ground that Mr. Morrissey was ordered to pay more than his fair share. If I am wrong in that, there was no basis on which it could sensibly have been contended that Mr. Morrissey ought to pay no costs.

40. As between Mr. Morrissey and Malcomson Law, the appeal must be dismissed.

41. As to the costs of the appeal, Mr. Morrissey has achieved a measure of success but has fallen far short of the open offer made by Everyday in its letter of 10th April, 2025 – by which Everyday offered to vacate the High Court costs order entirely. It seems to me that it was entirely unreasonable for Mr. Morrissey to have pursued his appeal after Everyday offered him all that he could have hoped to achieve by his appeal: and, by the way, a good deal more than he has ultimately achieved. Provisionally, it seems to me that as between Mr. Morrissey and Everyday, the appropriate order for costs is that Mr. Morrissey should have an order for his outlay and expenses of the appeal up to and including the first directions hearing, and that Everyday should have its costs thereafter; and that Everyday’s liability to Mr. Morrissey should be set off against Mr. Morrissey’s liability to Everyday.

42. I accept the submission on behalf of Malcomson Law that they should never have been joined and Malcomson Law is presumptively entitled to an order for its costs of the appeal: if it asks for one.

43. If, as between Everyday and Mr. Morrissey, either party wished to contend for any costs order other than that indicated, I would allow each a period of fourteen days from the date of electronic delivery of this judgment to file and serve a short written submission (not exceeding 2,000 words) setting out precisely what other order they would contend for and why; in which event the other should have fourteen days to reply, similarly so limited.

44. As far as Malcomson Law is concerned, I would allow a period of fourteen days for Malcomson Law to simply indicate whether it applies for the costs of the appeal. Absent an application for costs – or in the event of Malcomson Law indicating that it is not applying for an order for costs – the appeal will simply be dismissed. If Malcomson Law applies for an order for costs, I would allow Mr. Morrissey fourteen days – excluding the month of August

– to file and serve a short written submission (not exceeding 2,000 words) setting out his opposition to any such order, and thereafter fourteen days for Malcomson Law to respond.

45. As this judgment is being delivered electronically Whelan and Faherty JJ. have authorised me to say that they agree with it and with the orders proposed.