Court of Appeal reserves costs for trial judge due to insufficient information on claim value for differential order.

COURT OF APPEAL

APPROVED - NO REDACTION NEEDED

Court of Appeal Record Number: 2025/49

High Court Record Number: 2024/6103P

Neutral Citation Number [2025] IECA 201

Binchy J. Meenan J. Hyland J. BETWEEN:

MARTIN REILLY AND DONNA HESLIN

DEFENDANTS/ APPELLANTS

-and-

SYLVIA FOX

PLAINTIFF/ RESPONDENT

Judgment of Ms. Justice Hyland delivered on the 10 day of October 2025 Background

1. The principal judgment in these proceedings was delivered on 22 May 2025, Fox v Reilly [2025] IECA 115, where this court upheld the decision of the High Court granting an interlocutory injunction. This supplemental judgment addresses the issue of the costs of the proceedings, specifically whether they should be reserved to the substantive hearing or decided at this point.

2. The proceedings seek an order of vacant possession of a property in County Cavan, as well as orders restraining the appellants/defendants from entering the property, obstructing the respondents from entering the property, changing the locks, or causing or being a nuisance to the respondent.

3. Costs were awarded in favour of the respondent at High Court level by the trial judge (Quinn J.) with a stay pending an appeal. The trial judge held that the proceedings could have been brought either before the Circuit Court or the High Court but that, because the plaintiff/respondent could end up with an award of damages of €130,000 (being the price paid by her for the property), High Court costs were appropriate.

4. An appeal is brought against that decision by the appellants. The appellants argue that the respondent brought the proceedings in the incorrect court, as, given the value of the property in the proceedings, the Circuit Court was the correct jurisdiction. They rely upon s.17 of the Courts Act 1991, as amended by the Civil Law Miscellaneous Provisions Act 2013, which provides that where a costs order is made in favour of a plaintiff or appellant and the court is not the lowest court having the jurisdiction to make an order granting relief to the subject of the order, the plaintiff shall not be entitled to recover more costs than he would have been entitled to recover if proceedings had been commenced in the lowest court (known as a “differential costs order”).

5. The appellants contend that if a costs order is to be made against them, it should be a differential costs order i.e. an order on the Circuit Court scale in the High Court and the High Court scale in this court, on the basis that, given the purchase price of the property, the proceedings were well within the jurisdiction of the Circuit Court. They criticise the ruling of the trial judge justifying High Court costs on the basis that the respondent stood to be liable in damages for roughly €130,000 (being the value of the property), pointing out that no statement of claim seeking any such damages or evidence that any such damages were sought was provided. They also seek an order staying the costs until the determination of the proceedings if costs are awarded at this stage.

6. Alternatively, they argue that given this was an interlocutory injunction, the costs of the proceedings in the High Court should be reserved to the trial judge to be decided at the determination of proceedings, and that no order as to costs should be made in this court, citing the decisions of Dubcap Ltd v Microcrop Ltd, (Supreme Court, December 1997) and O’Dea v Dublin City Council [2011] IEHC 100 discussed below.

7. In the respondent’s written submissions, she does not engage with these issues but rather argues that, given that she was entirely successful in defending the appeal, she is entitled to the entirety of her costs, as costs follow the event. For her, there is no reason to depart from the general rule here, and the onus is on the appellants to demonstrate why the court should depart from the ordinary rule that costs follow the event. She does not address whether a costs order should be made at this stage or whether that decision should be reserved to the trial judge.

Analysis

8. The respondent has placed heavy reliance on s.169 of the Legal Services Regulation Act 2015 (the “2015 Act”) and the principles identified there i.e. the person who is wholly successful is presumptively entitled to their costs. This is an interlocutory rather than a final order and therefore does not come squarely within the terms of s.169. However, in Daly v Ardstone Capital Limited [2020] IEHC 345, Murray J. made it clear that success by one party is highly relevant to the determination of costs in an interlocutory application. In that case, the plaintiff was partially successful in their application for further and better discovery, while the defendant was successful in defeating some aspects of the application. Murray J. found it was appropriate to make no order as to costs. At para. 15, referring to s.168 and s.169 of the 2015 Act, he notes: “15. In particular, these provisions combine to present the following principles insofar as costs of an interlocutory application are concerned:

(a) The general discretion of the Court in connection with the ordering of costs is preserved (s.168(1)(a) and 0. 99 R.2(1)).

(b) The Court should, unless it cannot justly do so, make an order for costs upon the disposition of an interlocutory application (0.99 Rule 2(3)).

(c) In so doing, it should “have regard to” the provisions of s.169(1) (0.99 Rule 3(1)):

(d) Therefore - at least in a case where the party seeking costs has been ‘entirely successful’- it should lean towards ordering costs to follow the event (s.169(1)):

(e) In determining whether to order that costs follow the event the Court should have regard to the non-exhaustive list of matters specified in s.169(1)(a)-(g) (0. 99 R.3(1)):

(f) Those matters 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 (s. 169(1)(a) and (b)).”

9. As such, assuming I decide to award costs at this stage, I am entitled to place considerable weight on the fact that the respondent was entirely successful in resisting the appeal. But given that this is an interlocutory injunction, the first question that I must consider is whether costs should be awarded at this stage or left over to the trial judge.

10. The traditional approach to costs following a decision on an application for an interlocutory injunction was to reserve the costs to the trial judge. The case of Dubcap Ltd v Microcrop Ltd explains the rationale for this approach as follows: “It is right to say, of course, that while there is no rule of court or even of practice to that effect, the normal procedure on the hearing of an interlocutory application is to reserve the costs to the trial judge. The reason for that is obvious: there may and very frequently will be matters which can only be resolved by the court of trial on oral evidence at a plenary hearing of the action and indeed matters may come to light by way of discovery or by way of new evidence not available to the parties at the time of the hearing of an interlocutory application which may bring about a result which seemed unlikely or improbable at the time of the hearing of the interlocutory application, so for that reason it is quite normal on the hearing of interlocutory applications to reserve the costs. But that is not to say that the court does not retain its discretion to deal with costs in what appears to it to be the most just manner possible.”

11. A similar approach was taken by Laffoy J. in O’Dea v Dublin City Council [2011] IEHC

100. This case concerned a dispute between a tenant and the Council. The plaintiff sought an interlocutory injunction directing re-housing, which was settled before hearing. The court held that, in the absence of a determination on the merits, it was not its function to determine liability for costs and made no order as to costs. Laffoy J. quoted Keane J. in Dubcap, and noted that:

“A large variety of interlocutory applications come with the ambit of [Order 99] rule 1(4A). Most, by their nature, are susceptible to a determination as to where liability for costs should lie, without giving rise to concern that an injustice or an unfairness may be perpetrated. In my view, an application for an interlocutory injunction is not in that category, as is illustrated by the course which was usually adopted in relation to the costs of an interlocutory injunction prior to the coming into operation of rule 1(4A) - that the costs were reserved for the trial Judge to determine at the conclusion of the substantive hearing.”

12. With the adoption of Order 99, Rule 2(1) and (3), and indeed prior to that, Order 99, Order 99 Rules 1(1) and 1(4A)), the approach to the costs of interlocutory applications changed significantly. Rule 2(1) and (3) provided that, subject to the provisions of statute (including sections 168 and 169 of the 2015 Act) and except as otherwise provided: “(1) The costs of and incidental to every proceeding in the Superior Courts shall be in the discretion of those Courts respectively.

(3) The High Court, the Court of Appeal or the Supreme Court, upon determining any interlocutory application, shall make an award of costs save where it is not possible justly to adjudicate upon liability for costs on the basis of the interlocutory application.”

13. One can see the sense behind Order 99, r. 2(3): it avoids a trial judge adjudicating on the costs of a matter that he or she was not involved in, and that likely took place some months, or even years, prior to the determination of the substantive hearing. Instead, the judge who is intimately familiar with the matter, having recently adjudicated upon it, is in principle charged with determining the costs of that element of the case, provided it is possible to do so justly. It may be noted that there is no special carve out in Order 99 r.2(3) for the costs of interlocutory injunctions. Nonetheless, as the case law demonstrates, there will be circumstances where, having regard to the characteristics of an interlocutory injunction, the interests of justice will dictate that costs will be reserved. In Glaxo Group Ltd. v Rowex Ltd. [2015] IEHC 467, Barrett J. reserved the costs, on the basis inter alia that the injunction application dealt with matters that would be central to the full trial and this militated against making an order for costs at this stage. In Paddy Burke (Builders) Ltd [2020] IEHC 199, McDonald J. made an order directing costs in the cause in circumstances where the plaintiff unsuccessfully sought an interlocutory injunction against a receiver, on the basis that there would be a real risk of injustice if the receiver was awarded his costs at the interlocutory stage. On the other hand, in Thompson v Tennant [2020] IEHC 693, Butler J. found it was possible for the court to adjudicate on the costs of an interlocutory injunction application (albeit with a stay) where the plaintiffs had succeeded in establishing a fair question to be tried and that the balance of convenience favoured an injunction. Equally, in Madden v Louth County Council [2020] IEHC 422, where the plaintiff was unsuccessful in restraining the defendant by interlocutory injunction, Allen J. found nothing in the circumstances of the case justifying a departure from the general rule that the successful defendant was entitled to an award of costs against the plaintiff.

14. In summary, I should decide on the costs, both in this court and in the High Court, unless it is not possible to do so justly. Given the obvious benefits of making a costs order at this stage, it is with some reluctance that I have concluded that the costs of the interlocutory hearings should be reserved to the trial judge for the following reason. The appellants argue for a differential costs order, saying that the trial judge erred in taking into account the possible value of the property in treating the High Court as an appropriate jurisdiction, and refer to the lack of pleadings in respect of the respondent/plaintiff’s claim. It is true the pleadings are sparse: the plenary summons simply seeks damages for trespass and nuisance, injunctive relief restraining the appellants/defendants from entering the property and directing them to vacate and yield up possession of the property, and an order for possession. No statement of claim has been served. There is no identification of damages. Nor is there any reference to the rateable valuation of the property. Accordingly, the nature of the respondent/plaintiff’s claim in damages is not yet clear and no further details of same were provided to this court in the context of the dispute on costs.

15. In the circumstances, I do not consider I have sufficient information to make a decision on the application for a differential costs order. On the other hand, the trial judge will be ideally placed to do so as he or she will be in possession of the entirety of the respondent/plaintiff’s claim.

16. Accordingly, I have decided to reserve the costs both of the High Court and of this appeal in this court to the trial judge. Happily, written decisions have been given both by the trial judge and by this court on the substance of the injunction application and therefore the trial judge will be possession not just of the facts at the time of the injunction application, but also the view taken by both courts of the merits of the application. I hope this will assist the trial judge in adjudicating on what might otherwise be somewhat distant events.

Conclusion

17. For the reasons set out above, I uphold the appeal of the appellants/respondents in respect of costs and set aside the decision of the trial judge granting the costs of the injunction application to the respondent/plaintiff to be adjudicated on the High Court scale. I will make an Order reserving the question of the entitlement to costs, and the level of any such costs, both in the High Court and this court, to the trial judge.

18. Since this judgment is delivered electronically, I am authorised by Binchy and Meenan JJ. to state that they agree with it and the orders proposed above.