Court allows appeal on costs apportionment, holding that rejecting a settlement offer carries risk of adverse costs consequences.

APPROVED

NO REDACTION NEEDED

THE COURT OF APPEAL

CIVIL

Appeal Number: 2025/79

Neutral Citation Number [2025] IECA 199

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

RULING of Mr. Justice Allen delivered on the 9th day of October, 2025

1. This is a costs ruling.

2. On 1st April, 2025 Mr. Philip Morrissey appealed against an order of the High Court (the President) made on 24th July, 2024 (which was not perfected until 4th March, 2025) by which he was ordered to pay the costs of a motion which was brought by Everyday Finance Limited (“Everyday”) and Allied Irish Banks plc (“AIB”) for a series of orders to give effect to a settlement agreement. That motion had been opposed by Mr. Morrissey but for the reasons given in a written judgment delivered on 14th April, 2023 ([2023] IEHC 179) the orders sought were made by the High Court. An appeal by Mr. Morrisey to this Court was dismissed for the reasons given in a judgment delivered by Whelan J. on 8th March, 2024 ([2024] IECA 54).

3. The allocation of the costs of the enforcement application was dealt with in a further written judgment of the High Court delivered on 7th June, 2024 ([2024] IEHC 347) in which, for the reasons given, the President found that the appropriate costs order was a joint and several order against Mr. Morrissey and Malcomson Law. However, by the time the costs order came to be made on 24th July, 2024, Everyday and Malcomson Law had settled their differences and the costs order was made against Mr. Morrissey alone.

4. Mr. Morrissey appealed to this Court against that order. There was some uncertainty in the notice of appeal as to the precise scope of the appeal. The single ground of appeal was that the judge had erred in law and in fact in ordering him to pay the costs but the order sought by Mr. Morrisey in the event that his appeal were to succeed included “an order … for the apportionment of the costs of … Everyday Finance DAC as between [Mr. Morrissey] and Malcomson Law ...”.

5. For the reasons given in a written judgment delivered on 25th July, 2025 ([2025] IECA 150) this Court decided that Mr. Morrissey’s appeal against the order made in favour of Everyday should be allowed and the costs order against him varied to provide that Mr. Morrissey should pay Everyday’s costs of the motion him, but not its costs of dealing with the issues raised by Malcomson Law. That was at first glance all that Mr. Morrissey had sought and ordinarily would have carried the costs of the appeal.

6. What took this case out of the ordinary run was that on 10th April, 2025 – about a week after the filing of the notice of appeal and about four weeks before the first return date – Everyday wrote an open letter to Mr. Morrissey by which it offered to agree to the High Court costs order being vacated and the appeal struck out with no further order. With the exception of Mr. Morrissey’s (at that time very limited) outlay and expenses in connection with the appeal, the offer was of everything, or more, than Mr. Morrissey had asked for. Nevertheless, he declined Everyday’s offer and pressed his appeal. In the event, despite the additional expense on both sides and the use of court time, the outcome was less than had been offered.

7. At para. 41 of the principal judgment, the Court expressed the provisional view that the appropriate order for costs was 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; but gave leave for either party to file and serve a written submission in case they should contend for any other costs order.

8. On 12th September, 2025 Mr. Morrissey filed a submission in which he contended that the appropriate costs order was that there should be no order as to costs and went on to seek an order requiring Everyday “to make a full and complete accounting.” He did not at all address the substantive judgment or the fact that by refusing Everyday’s offer he had significantly increased the costs and ended up with less than he had been offered.

9. At the hearing of the appeal, one of the grievances which Mr. Morrisey sought to ventilate was that Everyday and the receivers had not accounted to him for the proceeds of the receivership or the realisation of the security which had been given in support of the borrowings. He could not then be brought to understand that all that was before the Court was his appeal against the costs order made on the motion for the enforcement of the settlement which he made with Everyday and the receivers on 31st January, 2020. It is not necessary or useful to go into the detail, but Mr. Morrisey was not entitled to attempt to mount a collateral challenge to the validity of the judgment in favour of AIB plc to which he had consented, or re-open grievances with AIB or Everyday or the receivers which had been fully and finally settled by the settlement agreement. Nor was he entitled to seek to ventilate his grievances in relation to his dealings with Malcomson Law.

10. Many of the issues sought to be raised in the written submissions in relation to the costs of the appeal were the same as those sought to be raised by Mr. Morrissey in his written and oral submissions on the substance of the appeal. As I endeavoured to explain in the substantive judgment, these issues had either been compromised or were not before the Court. If there can be degrees of irrelevance, they are even more irrelevant to the question of the costs of the appeal than they were to the substantive appeal.

11. On 24th September, 2025 a written submission was filed on behalf of Everyday in which it was said that – in light of the Court’s substantive conclusions – the indicative costs order was the appropriate order.

12. Everyday pointed in particular to the entitlement of the Court under s. 169(1) of the Legal Services Regulation Act to take into account:- “(b) whether it was reasonable for a party to raise, pursue or contest one or more issues in the proceedings,” and

(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.”

13. Everyday referenced the judgment of this Court in Fitzpatrick v. Murphy [2022] IECA

33 in which Murray J. said (at para. 28) (and Whelan and Costello JJ. agreed) that:- “What is important is that s. 169(1)(f) enables the court to take an offer of settlement into account in determining whether to award costs. The making of offers of this kind (whether open or, as is enabled by Order 00, r. 3(2), served ‘without prejudice save as to costs’) encourages settlement, reduces costs and saves court time. However, it only achieves these objectives if a failure to accept an offer carries with it some consequence. Mr. Thullier, for Mr. Murphy, opened an apt passage from the judgment of Olliver L.J. (addressing the policy considerations underlying the legal efficacy of a Calderbank offer) in Cutts v. Head [1984] 1 All E.R. 597 at p. 605: ‘As a practical matter, a consciousness of a risk as to costs if reasonable offers are refused can only encourage settlement, whilst, on the other hand, it is hard to imagine anything more calculated to encourage obstinacy and unreasonableness than the comfortable knowledge that a litigant can refuse with impunity whatever may be offered to him even if it is as much as or more than everything to which he is entitled in the action.’”

14. Reference was also made to the judgment of this Court in E. and F. v. G. and H.

[2021] IECA 108 in which Whelan J. said:-

“A party who elects not to accept a reasonable offer to compromise proceedings runs the risk that there may be costs implications attendant on that decision.”

15. I am reinforced by the submission on behalf of Everyday in my provisional view as to the appropriate costs order. As I have said, Mr. Morrissey does not engage with the question.

16. As between Everyday and Mr. Morrissey there will be an order for the adjudication of Mr. Morrissey’s outlay and expenses of the appeal up to and including the first directions hearing, and of Everyday’s costs thereafter should have its costs thereafter; an order that Everyday is entitled to set off its liability to Mr. Morrissey against Mr. Morrissey’s liability to Everyday; and an order for the payment of the balance when ascertained.

17. I mention for completeness that in the principal judgment the Court concluded that as between Mr. Morrissey and Malcomson Law, the appeal should be dismissed and that Malcomson Law was presumptively entitled to an order for its costs of the appeal: if it asked for such an order. Malcomson Law has confirmed that there was no such application and as between Mr. Morrissey and Malcomson Law, the order will be to simply dismiss the appeal.

18. 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.