High Court awards plaintiff costs on legal practitioner and client basis for successful injunction against trespass.

THE HIGH COURT

[2025] IEHC 391

[Record No. 2024/7334P]

BETWEEN

WENDY DOYLE

PLAINTIFF

AND

EUGENIE HOUSTON

DEFENDANT

JUDGMENT of Mr Justice Kennedy delivered on 9 July 2025.

1. This judgment deals with the costs of the plaintiff’s successful application for an interlocutory injunction restraining the defendant’s continuing trespass. The application was the subject of my 3 July 2025 judgment [2025] IEHC 373 (“the Judgment”), and should be read therewith.

2. While this ruling concerns the costs of the recent injunction application, the wider litigation context appears from, inter alia, most recently the judgment of Sanfey J on 5 February 2025 in proceedings initiated by the defendant in these proceedings against Reynolds J, Ireland and the Attorney General (2020/831P) (“the Isaac Wunder Judgment”) and in my own judgments on 6 March 2024 in proceedings bearing record no 2023/1876P (“the March 2024 judgment”) striking out those proceedings, and on 30 January 2025 in proceedings bearing record no 2017/377SP rejecting the defendant’s application that I recuse myself from dealing with this and related matters (“the Recusal Judgment”) arising from the defendant’s reoccupation of the Property. Regard should also be had to the Court of Appeal judgments on

7 April 2020, 18 November 2020 and 22 October 2020 and the Supreme Court determinations dated 25 May 2021,14 September 2021 and 2 August 2023, and my judgments of 14 May 2024 and 30 January 2025.

3. Paragraph 74 of the Judgment observed that the plaintiff was presumptively entitled to her costs but invited submissions if the parties sought any other order. The plaintiff submitted that such costs should be assessed on a “legal practitioner and client” basis rather than the standard (and less advantageous) “party and party” basis and also invited the Court to assess the quantum of those costs. For the reasons explained below, I accepted the plaintiff’s first submission, rejecting her second. I will deal first with the “legal practitioner and client” issue.

4. The plaintiff’s submission that not only was she entitled to her costs (on the basis of the general principle that costs follow the event) but that such costs should be assessed on a “legal practitioner and client” basis was advanced on the basis that the Plaintiff had had to devote considerable time effort and work to deal with the defendant’s “spurious and unrealistic applications”, which entailed costs which would not normally be recoverable on the usual basis because they were unexpected, unnecessary and unnatural. For example, she submitted that, although the 3 July 2025 hearing was to receive judgment, the defendant sought to use that occasion to re-open issues in my 3 July 2025 judgment and make further baseless allegations and the defendant’s conduct in that regard was consistent with her conduct throughout the proceedings.

5. The defendant responded to these submissions by denying that the 3 July 2025 hearing was “to receive judgment”, noting that the Court had invited the parties to make submissions on foot of a draft version of the judgment circulated prior to that hearing and she had informed the Court that she would be making submissions. If, as she confidently expected, she was ultimately successful on appeal, the plaintiff would be paying her costs.

THE LAW

6. S.168 of the Legal Services Regulation Act 2015 (“the LSRA”) provides as follows:

“(1) Subject to the provisions of this Part, a court may, on application by a party to civil proceedings, at any stage in, and from time to tome during, those proceedings:-

(a) order that a party to the proceedings pay the costs of or incidental to the proceedings of one or more other parties to the proceedings…

(2) Without prejudice to subsection (1), the order may include an order that a party shall pay …

(c) costs relating to one or more particular steps in the proceedings,..”

7. s.169 provides in relevant part:

“(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, …

8. Order 99 rule 2 RSC:

“(1) The costs of and incidental to every proceeding in the Superior Courts shall be in the discretion of those Courts respectively.

(2) ...

(3) The High 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…

(5) An order may require the payment of an amount in respect of costs forthwith, notwithstanding that the proceedings have not been concluded.”

9. Order 99 rule 10(1) RSC provides:

“(1) This Part applies to costs which by or under these Rules or any order or direction of the Court are to be paid to a party to any proceedings … by another party to those proceedings …

(3) The Court in awarding costs to which this rule applies may in any case in which it thinks fit to do so, order or direct that the costs shall be adjudicated on a legal practitioner and client basis.”

10. In Geaney v Elan Corporation plc [2005] IEHC 111 (Geaney), Kelly J (as he then was) awarded costs on a legal practitioner and client basis to indicate the court’s displeasure at the way a defendant had dealt with discovery. Likewise, in Dunnes Stores v An Bord Pleanála [2016] IEHC 697 (“Dunnes”), Barrett J awarded costs on the same basis where the entire proceedings were “infected by the abuse of process that subtended their commencement”.

11. In Trafalgar Developments Ltd v Mazepin [2020] IEHC (“Trafalgar”) 13 Barniville J (as he then was) surveyed the principles underpinning the jurisdiction to award costs on a legal practitioner and client basis. His summary was endorsed by the Court of Appeal in subsequent cases, most recently Bank of Ireland v Balford Construction Ltd [2023] IECA 26). In Trafalgar, he commented that:

“(1) The normal position is that where costs are awarded against one party in favour of [another], those costs will be taxed or adjudicated on the party and party basis.

(2) The court has a discretion to depart from the normal position in the particular circumstances of the case, where the court thinks fit to do so, and to direct that the costs be taxed or adjudicated on the solicitor and client basis.

(3) There has to be a good reason for the court to depart from the normal position and to make an order for costs on the solicitor and client basis (or on the even more severe basis, the solicitor and own client basis).

(4) The court may exercise its discretion to order costs on the solicitor and client basis where it wishes to mark its disapproval of or displeasure at the conduct of the party against which the order for costs is being made.

(5) The conduct in question can include:

(a) A particularly serious breach of the party’s discovery obligations;

(b) An abuse of process by that party in commencing and maintaining proceedings for an improper purpose or for an ulterior motive, designed to seek a collateral and improper advantage;

(c) The failure to exercise the requisite caution in commencing proceedings making claims of fraud or dishonesty or conspiracy without ensuring there exists clear evidence supporting a prima facie case in relation to such claims;

(d) Any other conduct in relation to the commencement or conduct of the proceedings, or any aspect of the proceedings, which the court considers merits [being] marked by the court’s displeasure or disapproval, such a particularly serious or blatant breach of a court order, the directions of the court or the Rules of the Superior Courts.

(6) In considering whether the conduct of a party is such that the court should exercise its discretion to make an order for costs on the solicitor and client basis, the court should:-

(a) Clearly identify the particular conduct or behaviour of the party which is said to afford the basis for the court exercising its discretion to award costs on the solicitor and client basis;

(b) Carefully examine and consider the explanation (if any) offered by the party for the conduct or behaviour in question;

(c) Carefully consider and examine the consequences (if any) of the conduct or behaviour in question for the other party, whether in terms of delay or costs or any other form of prejudice to that party;

(d) in light of the above, determine whether, in all the circumstances, it would be appropriate and in the interests of justice to award costs on the solicitor and client basis under O. 99, r 10 (3).

(7) While a failure to comply with the provisions of the Rules of the Superior Courts or of a direction or order of the court will normally merit the award of costs against the party in default, such costs will normally be awarded on the party and party basis. It will generally only be if the breach or failure to comply is of a particularly blatant or serious nature, having serious consequences for the other party, that the court will be justified, in the exercise of its discretion, to award costs on the solicitor and client basis (or, exceptionally, on the solicitor and own client basis).”

Discussion

12. For present purposes, I am concerned with the costs of the injunction application as opposed to those incurred on the related applications and proceedings which were frequently listed before me at the same time, some of which will be the subject of separate cost rulings. However, as explained below, the context of the other or earlier applications and proceedings has some relevance to the costs of the trespass proceedings.

13. I am satisfied that there is considerable force in the plaintiff’s submissions. As is explained in the Judgment, the basic facts underpinning her application were scarcely disputed (in terms of the order for vacant possession, the execution of the FiFa, the plaintiff’s agent taking possession and the defendant’s subsequent re-entry) . The defendant’s response to the motion essentially depended on her vigorously taking issue with a whole series of judgments and orders delivered or made by a succession of different judges over the years to which she took exception and with which she refused to comply, peppered with gratuitous attacks on the plaintiff and her lawyers.

14. But for the extraordinarily obstructive approach adopted in response to the motion, it would have progressed to hearing far more smoothly and quickly, reducing the effort and expense on both sides. However, directions hearings were required to progress the motion (along with related applications). These successive directions hearings were necessitated by the defendant’s persistent failure to comply with directions (even where she had agreed to them), her delays in filing a replying affidavit, and by delays granted so as to facilitate the defendant’s professed intention to take various steps (such as bringing applications to set aside earlier judgments or to seek a reference to the Court of Justice of the European Union). Generally, the actions which the defendant said were imminent failed to eventuate. The cumulative effect of the defendant’s approach was to obstruct and delay the progress of the proceedings and to increase the costs for the plaintiff but without availing of the numerous opportunities afforded to her to advance substantive factual or legal defences.

15. The various directions and substantive hearings in respect of the plaintiff’s trespass application were also protracted due to the defendant’s tactic of repeatedly seeking to resurrect grievances against the plaintiff and her lawyers and sundry issues already resolved in these or other proceedings, such as, for example, my refusal to recuse myself. I gave that ruling in related proceedings on 6 December 2024, prior to the launch of the trespass proceedings on 18 December 2024, offering to provide written reasons if requested. The defendant confirmed on

18 December 2024 that she did require such written reasons, so I duly provided detailed reasons in the Recusal Judgment on 30 January 2025. While the recusal issue had therefore been determined on 6 December 2024 (in separate but related proceedings), the defendant continued to ventilate the same meritless recusal issues, in much the same terms at subsequent directions hearings in respect of, inter alia, the trespass injunction application, albeit sometimes with (contrived) modifications. She persisted in this tactic at the hearing of the injunction application and even at the 3 July 2025 costs hearing.

16. I agree that one of the most concerning aspects of the defendant’s behaviour was her repeated attacks on the plaintiff and her lawyers. I have no reason to believe that there is any substance in the issues which she sought to raise, such as fraud, perjury or an alleged conflict of interest. As I understand it, the extraordinarily serious allegations of fraud or perjury concern her objection to the exhibits to affidavits sworn on 5 September 2017 in support of judgment mortgages registered by the plaintiff’s solicitors. The defendant has not articulated any other coherent basis for such claims. I dealt with the judgment mortgage issue in my 6 March 2024 judgment, which the defendant has not appealed (although she has repeatedly intimated indicated that such an appeal, or a motion to set aside the judgment, was imminent).

17. To take another example, as far as the conflict issue is concerned, if the defendant had any legitimate grievance in respect of the plaintiff’s solicitors, then she could and should have complained to the appropriate regulatory body and/or have sought an injunction to restrain the lawyers from acting for the plaintiff. It is too late for the defendant to adopt the latter course, but she appears to have sought to pursue the former option. There is no suggestion that her complaint was upheld but her dissatisfaction with that outcome does not give her carte blanche to make gratuitous claims against the plaintiff’s lawyers under the cloak of privilege, particularly since, even if there had been substance to the allegations – and I have no reason to believe that there was – those allegations would have been irrelevant to the issues before the Court in any event. The defendant’s repeated regurgitation of such claims were an abuse of process. Prior to the launch of the trespass proceedings, and reiterating an even earlier oral ruling, my recusal judgment had noted that the defendant repeatedly made serious allegations against the plaintiff and her lawyers and other persons which were not on affidavit, and which were not material to the issues before the Court. Some of the occasions on which the defendant has raised the issue predated these proceedings, as did the recusal judgment itself, and are therefore of purely contextual relevance to the current application. However, it is relevant that, undeterred by the Recusal Judgment, the defendant continued to adopt the same modus operandi at subsequent directions and substantive hearings of the trespass application, including at the hearing of the application and the 3 July costs hearing, with gratuitous attacks from the bar on, inter alia, the plaintiff and her lawyers.

18. For completeness I should note the disagreement between the parties as to the purpose of the 3 July hearing, which the plaintiff said was intended to deal with the question of costs, whereas the defendant sought to use it as an opportunity to relitigate the injunction application and, indeed, issues in the wider litigation. At my direction, the Courts Service had emailed the parties in advance of the hearing enclosing the unapproved judgment under cover of an email informing them that I had asked them to do so in order to allow the parties to consider it and make any submissions which may arise on foot of the judgment when the matter was next in court on Thursday, 3 July 2025. The circulation of an unapproved judgment (rather than immediately publishing it) was intended to facilitate the defendant in particular by offering her an opportunity to consider it before the question of costs was dealt with and also because I appreciated that she was anxious to preserve her right to seek a stay either from me or from a higher court if I granted the injunction. Affording the parties advance sight of the judgment was intended to afford the defendant in particular an opportunity to prepare any stay application and to respond to the plaintiff’s inevitable costs application. This was consistent with the approach which I had outlined at the hearing of the injunction at which I noted that I would defer delivery of my judgment for a few weeks not only because I wished to reflect (which I did) but also because the defendant had indicated her desire to apply to the Court of Appeal and I was willing to facilitate her by affording her a period to make any such application. Paragraph 74 of the unapproved judgment had stated that:

“In the circumstances, the plaintiff appears presumptively entitled to her costs. The proceedings are listed before me on 3 July 2024 to give the parties the opportunity to make submissions if they contend that any other order is appropriate in respect of the costs of the application or any other issue arising from the application or from this judgment”.

19. The defendant submitted that the email circulating the unapproved judgment should have made clear that the 3 July 2024 hearing was to be solely directed at the question of costs if that was the intention. I am bemused that a barrister of Ms Houston’s longevity should have treated the email as an invitation to repeat submissions already ventilated at length at the hearing of the injunction (and, in respect of many issues, on many previous occasions) and which were dealt with in the unapproved judgment which had been circulated. I would have expected any experienced lawyer to appreciate that the 3 July 2025 hearing was to address issues arising from the judgment such as costs or any stay application, not to relitigate issues addressed at the hearing of the application and dealt with in the detailed written judgment. Furthermore, even if the defendant had initially been under any illusion, it is notable that she persisted in making such submissions even when it was repeatedly made clear to her that those were not the issues which the Court was addressing.

20. There is no doubt that the manner in which the defendant has responded to the trespass injunction application has greatly increased the effort, expense and time which the plaintiff was required to devote to that application. Of course, the defendant is entitled to defend the proceedings on any factual or legal grounds that might be available to her. However, the concerns do not relate to any legitimate factual, legal or procedural steps so much as her consistently obstructive approach, both to the various directions hearings and to the substantive hearing of the application and, indeed the 3 July hearing. For example, at the substantive hearing of the injunction application more than two hours were devoted at the outset to the defendant’s various objections, objections which were as repetitious as they were devoid of substance. The 3 July 2025 hearing was prolonged for the same reason. Accordingly, I accept the plaintiff’s submission that she was exposed to an unexpected, unnecessary and unnatural burden and expense.

21. I also consider that the Court should mark its disapproval of the persistent abuse of its procedures to make unjustified and irrelevant personal attacks on the plaintiff and her lawyers. On the basis of the trilogy of authorities noted above, the costs order should reflect the court’s displeasure at the inappropriate manner in which the defendant had conducted her defence, obstructing and delaying the resolution of the application and making personalised, irrelevant attacks on the plaintiff and her lawyers from the bar. In Trafalgar terms, there is good reason for the court to make an order on the legal practitioner and client basis. The conduct which deserves particular criticism includes her abusing the court’s processes by failing to engage with the application actually before the Court and instead using the proceedings to mount (yet another) ancillary attack on other judgments and orders, and to make irrelevant personal allegations against the plaintiff and her lawyers from the bar.

22. The plaintiff would doubtless maintain that the explanation for the defendant’s tactics is that they were pursued for an improper purpose or ulterior motive, to seek a collateral and improper advantage rather than to advance a legitimate factual or legal defence which she would have been fully entitled to do but I do not need to make such a finding for present purposes. Suffice to say that the defendant’s reckless, ad hominem, attacks, including claims of fraud and dishonesty without ensuring there was clear evidence supporting a prima facie case in relation to such claims, certainly justify criticism and sanction. I consider the defendant’s conduct particularly egregious since, prior to the issuing of the trespass proceedings, I had previously drawn her attention to my concerns with regard to her gratuitous allegations against the plaintiff and her lawyers, but she responded angrily to such remonstrations. I also consider that the judgment of Collins J in the Court of Appeal decision in Houston v Wendy Doyle practising under the style and title of Wendy Doyle Solicitors [2020] IECA 289 is relevant in this regard, as is the Isaac Wunder Judgment (and indeed a similar finding at paras. 38 and 39 of my 6 March 2024 judgment).

23. In the context of these proceedings, it is concerning that the defendant obstinately continued to adopt the same tactics, in the teeth of earlier rulings. No satisfactory explanation has been forthcoming despite the opportunities afforded to her. She repeatedly asserted her rights under Irish law and the law of the European Union, but such undoubted rights do not entitle her to abuse the Court’s procedures or make unjustified and irrelevant attacks on the plaintiff and her lawyers from the bar. Indeed, the defendant’s approach displays a reckless disregard for other parties’ rights including their constitutional right to their own good names. In view of their content, the defendant’s persistent actions were of a particularly blatant or serious nature, having serious consequences for the plaintiff and her lawyers. See also Riordan v An Taoiseach [2001] 4 IR 463, where the court noted the following as criteria indicative of vexatiousness:

"(a) the bringing up on one or more actions to determine an issue which has already been determined by a court of competent jurisdiction;

(b) where it is obvious that an action cannot succeed, or if the action would lead to no possible good, or if no reasonable person can reasonably expect to obtain relief;

(c) where the action is brought for an improper purpose, including the harassment and oppression of other parties by multifarious proceedings brought for purposes other than the assertion of legitimate rights;

(d) where issues tend to be rolled forward into subsequent actions and repeated and supplemented, often with actions brought against the lawyers who have acted for or against the litigant in earlier proceedings;

(e) where the person instituting the proceedings has failed to pay the costs of unsuccessful proceedings;

(f) where the respondent persistently takes unsuccessful appeals from judicial decisions."

24. For the foregoing reasons, I am satisfied that the plaintiff is entitled to her costs and that such costs should be assessed on a legal practitioner-client basis under O. 99, r 10(3) RSC.

25. Turning to the plaintiff’s second submission, I have some sympathy for the submission that I should exercise my discretion pursuant Order 99 r 5 RSC to measure the costs to be awarded. The plaintiff proposed further directions to facilitate such an assessment. The defendant has consistently failed to comply with previous cost orders against her (including orders made on consent) and the obdurate failure to discharge her liabilities directly led to the seizure of her home by the Sheriff on 7 July 2024. There is no reason to believe that she is any more likely to cooperate with the present cost order. However, the plaintiff’s proposal would have required the submission of affidavit evidence as to the quantum of costs and a hearing in respect of that issue, which the plaintiff hoped to conduct before the end of the current term. During that same period the defendant has indicated her intention of progressing her current appeal (and possibly a further appeal against my judgment on the injunction application). She will likely be seeking a stay on my recent judgment at the first directions listing of her current appeal on 16 July. In the circumstances I consider that both parties’ efforts are better focused on the pending appeal(s) and any stay application. Depending on the ultimate outcome of the appeal(s), it may be open to the plaintiff to apply for an interim payment pursuant to Practice Direction HC125 at the appropriate time, but it would be inappropriate for me to assess the costs of the injunction application at this stage.

Conclusion

26. The order reflecting the terms of my Judgment will provide for the plaintiff to be awarded the costs of the interlocutory injunction application to be adjudicated in default of agreement and to be assessed on a “legal practitioner and client basis”.