Court dismisses appeal on costs award where defendant's legal fees were funded by the other accused.

THE COURT OF APPEAL

Approved

No Redaction Needed

Neutral Citation: [2025] IECA 161

Record Number: 2025/28

High Court Record Number: 2021/298P

Kennedy J. O’Moore J. MacGrath J.

BETWEEN/

NIKITA NÍ LAIMHÍN

PLAINTIFF/RESPONDENT

-AND-

CONOR MCGREGOR

FIRST NAMED DEFENDANT

-AND-

JAMES LAWRENCE

SECOND NAMED DEFENDANT/

APPELLANT

JUDGMENT of Mr. Justice Brian O’Moore delivered on the 31st day of July, 2025.

1. By plenary summons dated the 18th January 2021, the respondent (Ms. Hand) sued both Conor McGregor and the appellant (James Lawrence) for sexual assault. While Ms. Hand alleged that both Mr. McGregor and Mr. Lawrence had separately sexually assaulted her on the same day, it is important to note that this was in the one set of proceedings. In a very detailed statement of claim, delivered on the same day the plenary summons was issued, the following unusual plea is made: - “Following [Mr. McGregor’s] departure from the hotel, [Ms. Hand] returned to the hotel suite with [Mr. Lawrence] and seeing the bruises to her body, she queried [Mr. Lawrence] saying ‘do yis all put a blind eye to what Conor does to girls?’. [Ms. Hand] became very upset at this point, crying uncontrollably; [Mr. Lawrence] then ordered room service and gave [Ms. Hand] a drink.

“[Ms. Hand’s] next memory was being in a taxi. [Ms. Hand] was advised by Gardaí on the 4th February 2019 that [Mr. Lawrence] had advised that he had sexual intercourse with [Ms. Hand]. [Ms. Hand] has no recollection of this occurring and did not consent to any such sexual interaction between her and [Mr. Lawrence].”

2. Notwithstanding her incomplete memory of events, Ms. Hand’s proceedings claimed aggravated and exemplary damages against both of the defendants “owing to the manner and circumstances in which these sexual assaults occurred” and also sought damages against Mr. Lawrence “for the exacerbation of her personal injuries, loss and damage which she suffered as a consequence of the wrongful assault, sexual assault, battery, and trespass occasioned to her by [Mr. Lawrence] in the aftermath of the sexual assault occasioned to her by [Mr. McGregor].”

3. Given that Ms. Hand had pleaded that she has no recollection of being sexually assaulted by Mr. Lawrence, it is somewhat surprising that in his defence it was expressly pleaded that he had “consensual sexual intercourse” with Ms. Hand on two occasions on the 9th December 2018 at the Beacon Hotel.

4. I describe this pleading as unusual because it would have been plain to Mr. Lawrence and his legal advisors that, on the basis of the statement of claim from which it would have been very difficult for Ms. Hand to resile, she had no memory of having any sexual contact with Mr. Lawrence at all on the 9th December 2018. Had that pleaded case remained Ms. Hand’s position at the end of her evidence in any trial against Mr. Lawrence, there was always a possibility that Mr. Lawrence would have obtained a direction. Instead, by expressly pleading that he had sexual relations with Ms. Hand on the 9th December 2018, Mr. Lawrence had conceded a critical aspect of Ms. Hand’s claim which she otherwise would have struggled to establish (on her own evidence, at least).

5. It should also be noted that Mr. Lawrence’s defence was a joint defence with Mr. McGregor, prepared by the same solicitors and counsel.

6. The unusual nature of Mr. Lawrence’s pleaded defence inevitably had an effect at the

conclusion of Ms. Hand’s case at the trial of her claim before Mr. Justice Owens and a jury. When a direction was sought on behalf of Mr. Lawrence, given that Ms. Hand’s own testimony had on this point followed her pleaded case, the direction was refused by the trial judge on the grounds that Mr. Lawrence had accepted in his defence that he had had sex with Ms. Hand. The trial judge also found, correctly in my view, that whether or not the sexual relations had been consensual was a matter for the jury to decide having considered all the evidence.

7. Ultimately, Ms. Hand’s claim against Mr. Lawrence failed. Question 2 in the concise issue paper put to the jury read: - “(2) Did James Lawrence assault Nikita Ní Laimhín?”

8. The answer was: -

“No.”

9. At some stage before the trial of this action began (in November 2024) Mr. Lawrence began to be represented by different counsel to those appearing for Mr. McGregor, although both Mr. Gregor and Mr. Lawrence retained the same solicitors. That situation continued up to and including the appeal to this Court. At a hearing before the trial judge on the 5th December 2024, counsel for Mr. Lawrence applied for his costs of the proceedings as he had succeeded entirely in defending the claim against him by Ms. Hand. This was resisted by counsel for Ms. Hand. The ruling of the trial judge was given after lunch on the same day.

10. Referring to the evidence, the judge ruled as follows (at p. 86): - “Mr. McGregor’s account and Mr. Lawrence’s account of her having consensual sex witnessed by Mr. Lawrence in the bedroom were more likely than not to be inventions, as was Mr. Lawrence’s account of what went on afterwards up in the bedroom when they returned. If she was telling the truth about her interaction with Mr. Lawrence in the bedroom after Mr. McGregor left then it was inconceivable that Mr. Lawrence could have had sex with her, full stop. If he was telling the truth and they had consensual sex it was inconceivable that Mr. McGregor could have raped her beforehand. There was no middle ground available in my view for the jury on this. It is perfectly obvious in the finding of the jury in answer to question 1 relating to Mr. McGregor that they rejected the evidence of Mr. Lawrence and Mr. McGregor. This included rejection on the claim by Mr. Lawrence that after having sex with Mr. McGregor she inveigled Mr. Lawrence into having sex with her twice.

On the run of the evidence the jury was now being presented with what I would describe as the table d’hôte menu. They did not have the a la carte option of believing Mr. Lawrence and what happened between him and Ms. Hand and not believing him on what happened between Ms. Hand and Mr. McGregor. I should add that the sort of rolled up verdict relating to Mr. McGregor and Mr. Lawrence which the jury were invited by agreement to consider before I got my hands on the issue paper reflected that reality. The jury “no” answer to question 2 was a no based in my view clearly on no sex having taken place and not a “no” based on absence of proof of lack of consent by Ms. Hand to sex with Mr. Lawrence. He had not taken advantage of her while drunk. The reason was that he didn’t have sex with her at all.”

11. I will return to that interpretation of the jury’s finding shortly. It is a very significant one.

12. At p. 89 of the transcript the trial judge repeated his finding that: - “The case against Mr. Lawrence failed because [the jury] concluded that Mr. Lawrence didn’t have sex with Ms. Hand. That conclusion of fact on the way to arriving at their verdict against Mr. McGregor had to be the same in both actions.”

13. The trial judge then considered the provisions of s. 169 of the Legal Services Act 2015. Again, I will return to those in analysing the submissions made on this appeal. It is sufficient to observe that Mr. Lawrence was found (correctly) by the trial judge to have been “entirely successful” in defending his claim against Ms. Hand. However, the trial judge repeated his finding that this was “not for the reasons advanced in his defence.” While expressing understandable “reservations” about whether Ms. Hand should have sued Mr. Lawrence in the first place, the judge went on: - “…however the fact of the matter is that Mr. Lawrence and Mr. McGregor went with the one narrative and that was their particular choice and the resulting jury verdict on that narrative demonstrated that it wasn’t reasonable to raise the defence admitting sex which he did.”

14. The trial judge concluded that it would therefore be “completely inappropriate” to award Mr. Lawrence any of his costs in defending the claim.

15. The trial judge went on to find that this would also constitute “special cause” within the meaning of s. 94 of the Courts of Justice Act 1924; again, I will return to that legislation shortly.

16. This was the relevant part of the trial judge’s ruling on costs. It need hardly be said that there were a range of other difficult questions for the trial judge to decide. These included the level of costs to be awarded against Mr. McGregor, and whether or not there should be an order over against Mr. McGregor in favour of Ms. Hand in respect of her costs incurred against Mr. Lawrence. The judge refused to make such an order and refused to direct costs against Mr. McGregor on anything other than the ordinary party on party basis.

17. Mr. Lawrence appeals this decision on costs, and argues instead that he should be awarded his costs against Ms. Hand.

18. While ten different grounds of appeal wre advanced, thanks to the admirably concise way in which the appeal was addressed by both sets of counsel it essentially boils down to one issue. That is whether or not the trial judge was entitled to form the view that he did to the effect that the decision of the jury meant that Mr. Lawrence’s account (as pleaded in his defence) was not believed.

19. The notice of appeal, in addressing the specific legal provisions on which Mr. Lawrence relies, referred only to s. 169 of the Legal Services Regulation Act 2015 and Order

99 of the Rules of the Superior Courts. It follows that these are the relevant provisions to consider in assessing the appeal. In both their written and oral submissions, counsel for Mr. Lawrence referred to s. 94 of the Courts of Justice Act 1924. That provision reads: - “Subject to all existing enactments limiting, regulating, or affecting the costs payable in any action by reference to the amount recovered therein, the costs of every civil action, and of every civil question and issue, tried by a jury in the High Court or the Circuit Court shall follow the event, unless, upon application made, the Judge at the trial shall for special cause shown and mentioned in the order otherwise direct; and any order of a Judge as to such costs may be discharged or varied by the appellate tribunal.”

20. Counsel notes that in his judgment in Little v The Chief Appeals Officer [2024] IESC 53, Murray J. commented (at para. 37): - “And, as I have already observed, s. 94 of the Courts of Justice Act 1924 has never been repealed, and thus arguably continues to provide a basis for the award of costs in a jury action, albeit in a context in which its relationship with ss. 168 and 169 of the [Legal Services Regulation Act 2015] is unclear. This is patently unsatisfactory and unfortunate: the source of a power as centrally important to the day-to-day administration of justice in the State as the jurisdiction of the courts to award costs should be absolutely clear.”

21. The observations of Murray J. were accepted by both sides as being obiter. More importantly, notwithstanding the undisputed fact that s. 94 of the 1924 Act has not been specifically repealed, the comments of Murray J. are understandably tentative. The suggestion that s. 94 “arguably” provides a basis for the award of the costs in jury actions is quite noncommittal. The specific reference to the lack of clarity in the relationship between s. 94 and the more recently enacted ss. 168 and 169 is very significant. In his concurring judgment, Hogan J notes that S. 94 has not been “explicitly” repealed (while noting that Barton J rejected an argument of implied repeal in Gordon v Irish Racehorse Trainers Association [2020] IEHC 446). This completes the troika of reservations that these two judges appear to harbour about the continued vitality of s. 94.

22. No alleged failure on the part of the trial judge to comply with s. 94 features anywhere in the notice of appeal. If s. 94 of the 1924 Act is the relevant provision that the trial judge had to interpret, the current appeal would, therefore, fall away on a pleading point. I think that would be profoundly undesirable.

23. In addition, counsel for Mr. Lawrence correctly acknowledged during his oral submission that the particular instances listed at s. 169(1) of the 2015 Act would themselves represent “special cause shown” within the meaning of s. 94.

24. In the absence of any relevant difference between s. 94 of the 1924 Act and s. 169 of the 2015 Act, I propose (as sought in the notice of appeal filed on behalf of Mr. Lawrence) to consider the costs issue by reference to the more recent legislation. That is s. 169 of the 2015 Act, which reads: - “169. (1) A party who is entirely successful in civil proceedings is entitled to an award of costs against a party who is not successful in those proceedings, unless the court orders otherwise, having regard to the particular nature and circumstances of the case, and the conduct of the proceedings by the parties, including—

(a) conduct before and during the proceedings,

(b) whether it was reasonable for a party to raise, pursue or contest one or more issues in the proceedings,

(c) the manner in which the parties conducted all or any part of their cases,

(d) whether a successful party exaggerated his or her claim,

(e) whether a party made a payment into court and the date of that payment,

(f) whether a party made an offer to settle the matter the subject of the proceedings, and if so, the date, terms and circumstances of that offer, and

(g) where the parties were invited by the court to settle the claim (whether by mediation or otherwise) and the court considers that one or more than one of the parties was or were unreasonable in refusing to engage in the settlement discussions or in mediation.

(2) Where the court orders that a party who is entirely successful in civil proceedings is not entitled to an award of costs against a party who is not successful in those proceedings, it shall give reasons for that order.

(3) Where a party succeeds against one or more than one of the parties to civil proceedings but not against all of them, the court may order, to the extent that the court considers that it is proper to do so in all the circumstances, that—

(a) the successful party pay any or all of the costs of the party against whom he or she has not succeeded, or

(b) the party or more than one of the parties against whom the successful party has succeeded pay not only the costs of the successful party but also any or all of the costs that the successful party is liable to pay under paragraph (a).”

25. I will now deal with the specific submissions made on behalf of the parties.

26. One argument made by Mr. Lawrence’s counsel was to the effect that the issue paper could have included questions which identified precisely why Ms. Hand’s claim against Mr. Lawrence failed. However, that was not done, for understandable reasons. As I have mentioned in the course of my judgment on Mr. McGregor’s appeal, the trial judge was clearly trying to simplify issues for the jury. This approach, and his formulation of the questions, could not give rise to any error on his part in the conduct of the trial or his decision on costs.

27. However, the way in which the questions were phrased means that the jury’s decision was equally consistent with two very different propositions. These were (a) that Ms. Hand never had sex with Mr. Lawrence; or (b) that Ms. Hand had consensual sex with Mr. Lawrence.

28. Importantly, counsel for Ms. Hand (though initially resisting the proposition) ultimately accepted that the jury’s verdict was equally consistent with either of those scenarios. Counsel went on (at p. 56 of the Transcript for Day 2 of the Appeals):- “… But the Judge chose a different interpretation and I say he was entitled to and within his jurisdiction in considering the conduct of the case and was in a particular position to assess the demeanour of the witnesses and in particular Mr. Lawrence and Mr. McGregor when embarking on that.”

29. There are two obvious problems with this line of argument. Firstly, the judge was not a fact finder in the case. As he made very plain to the jury on a number of occasions in his charge, and as in any event was clearly the situation, it was for the jury to make findings of fact. It was not for the judge to do so. The trial did not involve a parallel process where the jury made findings of fact in accordance with the issue paper, but the judge then interpreted those findings by reference to his own assessment of the evidence and, in particular, “the demeanour of the witnesses…”.

30. The second obvious difficulty with this approach is that the trial judge did not, in fact, make separate reasoned findings of fact. It is true that, at one stage, the trial judge does seek to interpret the jury’s verdict by reference to the evidence: this is notably the case when he observes that Mr. Lawrence’s account of consensual sex with Ms. Hand was so inconsistent with the proposition that Mr. McGregor had raped Ms. Hand that the jury (in finding that Mr. McGregor has sexually assaulted Ms. Hand) necessarily must have rejected the evidence of Mr. Lawrence. The judge does not explain why he has come to that conclusion. Equally, the judge’s view that it was “perfectly obvious…” from the jury’s verdict that they rejected Mr. Lawrence’s account of what had happened between himself and Ms. Hand is not clearly explained and is at odds with the concession (correctly made) by counsel for Ms. Hand on the appeal that the jury’s verdict was in fact potentially consistent with Mr. Lawrence’s account.

31. The trial judge’s interpretation of the jury’s verdict was central to his decision to refuse Mr. Lawrence’s costs. As that analysis was flawed, it follows that the rationale behind the trial judge’s decision on these costs is not one with which I agree.

32. At the conclusion of the hearing of the appeal, both parties agreed that if the trial judge’s ruling on costs was not upheld then it would be appropriate for this Court to decide the issue. Both sides were prepared to rest on their written and oral submissions and accepted that there was nothing further to be said in respect of Mr. Lawrence’s costs application. This represented an eminently sensible approach on the part of both legal teams.

33. I will now consider afresh the question of the costs of Ms. Hand’s claim against Mr. Lawrence. For the reasons I have described, I will do so by reference to the provisions of the 2015 legislation and the amended version of Order 99 of the Rules of the Superior Courts. In a frequently quoted passage Murray J., at para. 19 of his judgment in Chubb v. Health Insurance Authority [2020] IECA 183 referring both to the Rules and to the relevant sections of the 2015 Act, set out the following principles:- “Reading O. 99 RSC as it stands 3 December 2019 and the relevant parts of ss. 168 and 169 of the 2015 Act in conjunction with each other, it seems to me that the general principles now applicable to the costs of proceedings as a whole… can be summarised as follows:

(a) The general discretion of the court in connection with the ordering of costs is preserved…

(b) In considering the awarding of costs of any action, the court should ‘have regard to’ the provisions of s.169(1)…

(c) In a case where the party seeking costs has been ‘entirely successful in those proceedings’, the party so succeeding ‘is entitled’ to an award of costs against the unsuccessful party unless the court orders otherwise ...

(d) In determining whether to ‘order otherwise’, the court should have regard to the ‘nature and circumstances of the case’ and ‘the conduct of the proceedings by the parties’…

(e) Further, the matters to which the court shall have regard in deciding whether to so order otherwise include the conduct of the parties before and during the proceedings, and whether it was reasonable for a party to raise, pursue or contest one or more issues…

(f) The court, in the exercise of its discretion may also make an order that where a party is ‘partially successful’ in the proceedings, it should recover costs relating to the successful element or elements of the proceedings...

(g) Even where a party has not been ‘entirely successful’ the court should still have regard to the matters referred to in s. 169(1)(a)–(g) when deciding whether to award costs (0.99, r.3(1)).

(h) In the exercise of its discretion, the court may order the payment of a portion of a party’s costs, or costs from or until a specified date…”

34. Mr. Lawrence has been wholly successful, and is therefore entitled to his costs unless this Court orders otherwise. In deciding whether or not Ms. Hand was acting reasonably in making this claim in the first place, one must take into account the singular fact that she had no recollection of any sexual assault by Mr. Lawrence; indeed, Ms. Hand had no recollection of any sexual act between Mr. Lawrence and herself. As the trial judge observed, there had been a great deal of alcohol consumed by a number of the participants in the events of 9th December 2018, and it was therefore open to Ms. Hand at the commencement of the proceedings to make a claim that she was so inebriated that it was impossible for her to consent in any meaningful way to any sexual activity with Mr. Lawrence. However, that case could only be made in the event that she was able to prove that there had been sexual activity; she could not give such evidence herself that any such activity had occurred.

35. While the trial judge appears to have disapproved of the fact that Mr. McGregor and Mr. Lawrence were (as he put it) in “lock step” in defending the proceedings, I do not think that that in itself is a factor weighing in Ms. Hand’s favour. If the separate accounts being given by Mr. McGregor and Mr. Lawrence were true, there is no reason why they would not have defended Ms. Hand’s claim in a coordinated way.

36. I am equally unimpressed by the argument deployed by Ms. Hand’s counsel that Mr. Lawrence should not get his costs against Ms. Hand as that would more than wipe out the award in her favour arising from her sexual assault by Mr. McGregor. Ms Hand chose to bring these proceedings against Mr. Lawrence. They failed. Alleging sexual assault against Mr. Lawrence was a terribly serious thing to do. In light of the jury’s finding, Mr. Lawrence did not sexually assault or rape Ms. Hand. Refusing Mr. Lawrence’s costs solely or partially on the ground that this would wipe out Ms. Hand’s damages would neither be fair nor appropriate.

37. I will now consider the conduct of Mr. Lawrence, and the unusual ‘circumstances’ of this case.

38. At the outset, there is the fact that Mr. Lawrence in his Defence pleaded that he had sex with Ms. Hand. I have already described why this is an unusual thing for Mr. Lawrence to have done, from his own perspective. It may have made tactical sense, by presenting an ostensibly coherent joint narrative between himself and Mr. McGregor—which, of course, is what it was intended to do. It came at a price to Mr. Lawrence, however, in that it avoided Ms. Hand having to prove (through means other than her own evidence) that there had been sexual activity between herself and him. However, this pleading issue is by no means a significant consideration (let alone a decisive one) when it comes to considering any award of costs.

39. Separately, one must consider the evidence given by Mr. Lawrence on the one issue about which the jury’s view is not in doubt; whether or not Mr. McGregor raped Ms. Hand. Indeed, the trial judge went some way down this road before coming to his conclusion that the jury’s verdict (on the case against Mr. Lawrence) had one meaning when in fact it was equivocal.

40. Mr. Lawrence’s evidence was strongly to the effect that the sex between Mr. McGregor and Ms. Hand was consensual. It is completely at odds with Ms. Hand’s account—which must have been believed by the jury—that Mr. McGregor sexually assaulted her. Two extracts from the evidence of Mr. Lawrence will suffice to illustrate the point:- “Q. Now, I must also put it to you that these marks came about on my client because as she said in her evidence after she remonstrated with Mr. McGregor and protested, he wasn’t taking no for an answer?

A. Yeah, I heard her saying but I also told you that we were four foot away from Nikita at all times. I am not going to say for Danielle but I am telling you for me personally I was four foot away from Nikita at all times. Like I told you already, I wouldn’t give, I don’t care what man it is, it could be my brothers, it could be anyone, I would not let any man do anything to any woman, nothing, nothing not a slap not a bleedin pulling the hair. I come from a family of women, I have six sisters and eight aunties and millions of nieces. I would not do anything like that. I wouldn’t stand up for anyone in court if I thought he done anything. If I thought he bleedin slapped her once, I wouldn’t be here. I wouldn’t stand up for any man doing anything to any woman and I wouldn’t do anything to any woman like that either.” (day 7, at p. 179).

41. This evidence is radically opposed to Ms. Hand’s account. On Mr. Lawrence’s testimony, he would have become aware of any rough treatment of Ms. Hand by Mr. McGregor but there was none. This is so different from Ms. Hand’s evidence that it cannot have been accepted by the jury when it found that Mr. McGregor assaulted her. It is important to stress that this is not a finding of fact by this court. It is, instead, a conclusion based on the fact that the jury found as a fact that Mr. McGregor had assaulted Ms. Hand by raping her. Given that finding, this evidence of Mr. Lawrence must have been rejected.

42. A second excerpt from Mr. Lawrence’s evidence is to similar effect. In his direct evidence, Mr. Lawrence stated that, from the room he was in, the door to the room inhabited by Mr. McGregor and Ms. Hand was open “the whole night”; page 121 of Day 7. He went on to testify (at page 122 of Day 7);

“I heard sex noises. I heard Nikita moaning, like having a good time, having sex basically.”

43. He added (at page 123): “Between all this Nikita was popping in and out of the room, getting herself drinks, having a laugh.” This evidence was expressly denied by Ms. Hand as “a made up story” and “lies” when it was put to her by counsel for Mr. Lawrence; Day

4 at page 47 et seq.

44. As I have said, these are merely examples of Mr. Lawrence’s evidence supporting Mr. McGregor’s account. There are several other instances where Mr. Lawrence gave evidence inconsistent with the jury’s verdict.

45. There is a stark difference between the rape described by Ms. Hand and the consensual sex described by both Mr. McGregor and, to some extent, by Mr. Lawrence.

46. It is plain that the evidence of both Mr. McGregor and Mr. Lawrence on the central issue concerning the rape of Ms. Hand by Mr. McGregor was rejected by the jury. In considering, therefore, the conduct of the parties during the proceedings, this Court should take into account the fact that aspects of Mr. Lawrence’s evidence were fundamentally at odds with the jury’s verdict in favour of Ms. Hand against Mr. McGregor. This evidence can only be regarded as untruthful given the fact that the jury found that Ms. Hand had been sexually assaulted by Mr. McGregor. On this point, it is notable that Mr. Lawrence does not say that he has any problem recalling the relevant events in the Beacon Hotel, and indeed he went out of his way to give evidence that (unlike others) he had neither taken drugs nor consumed excessive amounts of alcohol on the day; see his evidence at Day 7, page 160, where he testified that he “[does] not do cocaine”, and at page 112 where he stated that he is “not much of a heavy drinker so I would have a few vodkas and Lucozade but I wouldn’t go overboard.” He was also careful to point out under cross examination that “I was there and I can remember the night”; Day 7 at page 178. In addition Mr. Lawrence was interviewed by the Gardaí extensively the following month, so he is not giving evidence in 2024 about a mundane event five years earlier which was thought to be otherwise unimportant at the time.

47. The evidence given by Mr. Lawrence in support of his co-defendant and friend (which, as described earlier, must be regarded as untruthful) would, in my view, be enough to deprive Mr. Lawrence of his costs against Ms. Hand. The giving of such evidence is a very serious matter. As far as “conduct” goes, it is difficult to imagine a much more extreme example of behaviour which would lead a court to withhold an award of costs from an otherwise successful litigant. It is important to keep in mind the fact that, while it relates to the claim against Mr. McGregor, the relevant evidence of Mr. Lawrence was given in the same case and at the same trial in respect of which he now seeks his costs.

48. However, there is another very significant factor which calls into question the entitlement to an award of costs on the part of Mr. Lawrence.

49. The evidence of Mr. McGregor was that he had paid Mr. Lawrence’s costs. There was no evidence that this was a loan by Mr. McGregor to Mr. Lawrence. In essence, Mr. McGregor swore that “…my Friend is James and, you know, he doesn’t, he wouldn’t have the fees for it so I believe I may have [paid his fees], yeah…”. There is no reason to believe that Mr. Lawrence bears any legal obligation to repay Mr. McGregor some or all of these costs. During the submissions on costs before the trial judge, counsel for Mr. McGregor intervened to confirm that Mr. McGregor’s evidence had been that all of Mr. Lawrence’s costs had been paid (and were being paid) by his co-defendant.

50. Given that fact, one wonders what the purpose of an award of costs to Mr. Lawrence is. The reason why there is at least a presumptive entitlement to costs on the part of an entirely successful party under s. 169(1) is that this helps to make whole a party who has been wrongly sued. If that party has, in fact, had their costs paid for them by an acquaintance and codefendant, an award of costs in simply otiose. The purpose of awarding costs is not to provide a windfall to somebody who has successfully defended an action against them. If in this case, Mr. Lawrence chooses not to repay Mr. McGregor, then (on the figures deployed before us at the hearing) Mr. Lawrence will have received a bounty of several hundred thousands of euro for his troubles. That is not a result that the proper exercise of a court’s jurisdiction—either by reference to statute or to the Rules—is designed to achieve.

51. This is very different to a situation where an insurer bears the litigation costs of an insured. That is a regular commercial arrangement in which the risk of an adverse event is bought off or moderated by an insured through the payment of a premium. In addition, the insured does not have the option of keeping any award of costs made in their favour; these sums are collected by the insurer. The arrangement between Mr. McGregor and Mr. Lawrence, on the other hand, is shrouded in mystery. One possibility, as I have mentioned, is that Mr. Lawrence does not have to (or will not voluntarily) repay Mr. McGregor. If that is the case, it would simply not be appropriate to enrich Mr. Lawrence by providing him with a sum of money in respect of costs that he has never had to pay.

52. Alternately, if Mr. Lawrence were to pass on to Mr. McGregor the costs paid to him by Ms. Hand, the award of costs in favour of Mr. Lawrence actually benefits Mr. McGregor. In my view, that would be a factor to be taken into consideration in assessing ‘the circumstances of the case’. It would mean that, should Mr. Lawrence be awarded some or all of his costs, Ms. Hand would be making a payment initially to an individual who gave inaccurate evidence against her, and ultimately to the man who raped her. Such a circumstance should weigh heavily with this Court. It constitutes another free standing reason as to why Mr. Lawrence should not be awarded his costs against Ms. Hand.

53. It should be remembered that the separate representation (through counsel) of Mr. Lawrence would, in the ordinary course of events, have brought significant advantages to Mr. McGregor. It highlighted the fact that not one but two individuals were claiming that they had been wrongfully accused of sexual assault by Ms. Hand. More prosaically, but also more importantly, it meant that Ms. Hand and certain of her witnesses were facing crossexamination by not one but two counsel. It is likely to be quite disadvantageous, in my view, for a witness to undergo intensive cross-examination by one barrister, only to then be cross-examined by another about similar issues but with a different style, approach, and (possibly) appeal to the jury. Inevitably, any concessions made by Ms. Hand or her witnesses under cross-examination had the potential to undermine the credibility of her entire case against both defendants. It would appear (from Mr. McGregor’s evidence) that Mr. Lawrence could not, from his own resources, have engaged a full legal team at all, let alone the calibre of lawyers who eventually represented him. Mr. McGregor’s funding of Mr. Lawrence’s costs may, therefore, have been money well spent. Whether it was or was not, the fact that Mr. Lawrence’s legal expenses were fully funded by Mr. McGregor is in itself a circumstance which leads to the conclusion that Mr. Lawrence should not be awarded his costs against Ms. Hand.

54. Considering all these factors, and for the reasons I have given, I have concluded that the appropriate order for costs in respect of Ms. Hand’s claim against Mr. Lawrence is that each side would bear their own costs. For the sake of completeness, I should record my view that the untrue evidence of Mr. Lawrence and the fact that his costs were paid for completely by Mr. McGregor would individually and taken together constitute “special cause” within the meaning of s. 94 of the Courts of Justice Act 1924, were that the governing legislation in this case.

55. In the respondent’s notice, Ms. Hand does not cross appeal the judge’s ruling as to costs and has not asked this Court to make an award in her favour against Mr. Lawrence. This is sensible, and I could not see any reason why this Court would do so.

56. I would dismiss the appeal as I have, for rather different reasons, come to precisely the same decision as did the trial judge as to whether or not Mr. Lawrence should be awarded his costs against Ms. Hand. In my view, he should not.