High Court dismisses appeal and awards costs to Board for successful preliminary objection on time limits.

[APPROVED]

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THE HIGH COURT

[2025] IEHC 446

[2024 646 MCA]

BETWEEN

JASON CAHILL

APPELLANT

AND

RESIDENTIAL TENANCIES BOARD

RESPONDENT

JUDGMENT of Mr. Justice David Barniville, President of the High Court, delivered on the 31st day of July 2025

1. Introduction

1. This is my judgment on the issue of costs in this case. In my judgment on the substantive issue, which was delivered on 18 July 2025 ([2025] IEHC 410) (the “principal judgment”), I decided that the appellant, Mr. Cahill, had not brought his appeal from the determination order made by the respondent, the Residential Tenancies Board (the “Board”), on 28 February 2024 within the requisite 21-day time period prescribed by s. 123 of the Residential Tenancies Act 2004 (as amended) (the “2004 Act”). Mr. Cahill’s appeal was not brought until he issued his originating notice of motion on 20 December 2024, several months outside the 21-day time period. On that basis, I decided that I would have to make an order dismissing Mr. Cahill’s appeal.

2. At para. 44 of the principal judgment, I addressed the question of costs on a provisional basis. I stated that, since the Board had been entirely successful in the preliminary objection which it raised to Mr. Cahill’s appeal, my provisional view was that the Board was entitled to its costs of the application and of the proceedings. I indicated that if Mr. Cahill wished to dispute that provisional view, he should provide a short written submission to the Registrar setting out his reasons within 7 days of the electronic delivery of the principal judgment. I indicated that if he did not do so, I would make an order for costs in accordance with my provisional view. In the event that Mr. Cahill did deliver a submission on the issue of costs, I indicated that I would consider that submission and any responding submission from the Board (which I required be provided by the Board within 7 days of receipt of any submission from Mr Cahill).

3. Mr. Cahill did provide a submission on the question of costs on 25 July 2025. Mr. Cahill had originally provided his submission in the form of two emails which were sent to the Registrar but not to the Board’s solicitors. At the request of the Registrar, Mr. Cahill consolidated the submissions made in those emails into one document which was furnished to the Board. Responding submissions on behalf of the Board were provided on 30 July 2025. I have carefully considered both sets of submissions.

2. Mr. Cahill’s submissions on costs

4. Essentially, Mr. Cahill submits that he was at a disadvantage at the hearing of the application which took place on 14 July 2025 at the Courthouse in Washington Street in Cork. Mr. Cahill chose to participate in the hearing remotely. He complains, in his submissions, that he was initially sent the wrong link for the hearing and that this caused him stress and anxiety. He states that his camera did not work and that he was at a disadvantage at the hearing as a result. Mr. Cahill also says that he could not hear counsel for the Board “very well sometimes as (sic) during the case or make out what he was saying”. Mr. Cahill further submits that the instruction given by Gearty J regarding the evidence for the hearing of the application “was not followed correctly” by the Board’s solicitors. He states that his “books of evidence” were not in court on the day of the hearing and that they had to be asked for (by the Court) which he says caused him more stress and anxiety and that he “forgot to ask about evidence” which he had “over this”. He further states that the Board’s side had more time than he had to present its case and that he did not get a chance to present his evidence on three matters which he acknowledges I indicated that I would “read later”. Mr. Cahill then states that certain evidence on behalf of the Board was incorrect and appears to suggest that he had not received an affidavit from the Board.

5. In addition to these points, Mr. Cahill makes a number of points (at paras. 9 to 11 of his submission) which are directed to the substantive case which he wished to make in relation to the Board’s determination and not to the issue of the timing of his appeal.

3. The Board’s submissions on costs

6. In its written submissions, the Board submits that the costs order proposed by the court on a provisional basis is the appropriate order to be made, having regard to the provisions of ss. 168 and 169 of the Legal Services Regulation Act 2015 (the “2015 Act”) and the recast Order 99 RSC. The Board relies principally on s. 169 of the 2015 Act and contends that it has been “entirely successful” on the issue which I had to decide, namely, the Board’s preliminary objection based on the timing of Mr. Cahill’s appeal. The Board relies on a number of cases in support of its contention that it has been “entirely successful” and that it should, therefore, obtain an order for costs in its favour. The cases cited by the Board include: Chubb European Group SE v Health Insurance Authority [2020] IECA 183, Higgins v Irish Aviation Authority [2020] IECA 277 and Dunne v Minster for the Environment [2008] 2 IR 775. The Board submits that it has been “entirely successful” in that its preliminary objection was acceded to by the Court and the proceedings were dismissed in their entirety. It further submits that there is no special reason why the Court should exercise its discretion to depart from the ordinary principle that the costs of the proceedings should be awarded to the Board.

7. With respect to the complaints made by Mr. Cahill in relation to the events prior to and at the hearing on 14 July 2025, and, in particular, the difficulties which Mr. Cahill claims he experienced in (a) accessing the hearing remotely; (b) hearing the Board’s oral arguments; (c) providing his own evidence to the Court; (d) responding to the evidence of the Board; and (e) making his own oral arguments to the Court, the Board makes the following points.

8. It says that, if Mr. Cahill was unhappy with the way in which the hearing of the proceedings was conducted, it was incumbent on him to raise any relevant objection at the time so that the objection could be considered and accommodated, as appropriate. In fact, the Board submits, Mr. Cahill was able to access the remote hearing and was afforded every facility and as much time as he wished to provide evidence and to make his submissions to the Court, all of which were taken into account by the Court. The Board notes that, as confirmed at para. 19 of the principal judgment, in circumstances where Mr. Cahill had not sworn any replying affidavit, the Court nonetheless reviewed the documentation provided by him in advance of the hearing, and that documentation was considered by the Court not to be relevant to the preliminary objection. The Board further notes that, as further confirmed at para. 20 of the principal judgment, the Court carefully considered all of the submissions made by Mr. Cahill before concluding that the appeal had to be dismissed as a matter of law. The Board submits that there is no basis for Mr. Cahill’s claim that he was disadvantaged in any way in the presentation of his case in response to the Board’s preliminary objection.

9. With respect to the balance of the submissions advanced by Mr. Cahill, the Board observes that the matters which have been raised by Mr. Cahill go to the merits of his appeal against the determination order made by the Board and the decision of the Tribunal, and not to the timing issue which the Court has decided against Mr. Cahill. The Board submits that those matters are not relevant to the question of costs.

10. The Board submits, therefore, that the matters raised by Mr. Cahill in his submissions do not afford any basis on which the Court could exercise its discretion to depart from the ordinary rule in relation to the costs of proceedings, as provided for in s. 169 of the 2015 Act, in circumstances where the Board has been entirely successful in the proceedings.

4. Decision on costs

11. I have carefully considered all of the submissions advanced by Mr. Cahill and by the Board on the issue of costs. Having done so, I am satisfied that I should adopt the provisional view which I set out at para. 44 of the principal judgment. Since the Board has been “entirely successful” in the preliminary objection which it raised in response to Mr. Cahill’s appeal, the Board is entitled to its costs of the application determining the preliminary objection and of the proceedings. The Board’s entitlement to those costs arises under ss. 168 and 169 of the 2015 Act and the recast O. 99, r. 2(1) RSC.

12. Order 99, rule 2(1) provides that the costs of and incidental to every proceeding are at the discretion of the court. Section 168(1) of the 2015 Act provides that the court may order a party to proceedings to pay the costs of or incidental to the proceedings of one or more other parties to the proceedings, subject to further details which are spelt out in the remaining provisions of Part 11 of the 2015 Act. Section 169 of the 2015 Act provides for the general rule that a party who is “entirely successful” in the proceedings is entitled to an award of costs against a party who is not successful in those proceedings unless the court orders otherwise. Section 169(1) goes on to refer to some circumstances in which the court might order otherwise. They include the “particular nature and circumstances of the case” and the “conduct of the proceedings by the parties”, including various particular types of conduct or behaviour which are set out, by way of example, at paras. (a) to (g) of s. 169(1). None of those circumstances are present in this case.

13. There is, therefore, a presumptive entitlement to an award of costs in favour of a party who has been “entirely successful” in the proceedings.

14. The Board has been “entirely successful” in the proceedings. The Board raised a preliminary objection that Mr. Cahill’s appeal was out of time. That preliminary objection was heard and determined in favour of the Board by the Court for the reasons set out in the principal judgment. As a consequence of the determination of the preliminary objection in favour of the Board, Mr. Cahill’s appeal has been dismissed. Insofar as he seeks in his written submissions to ventilate matters which he says go to the substance of the merits of his appeal, it is not open to him to seek to ventilate those matters in his appeal to the Court, in circumstances where that appeal has been dismissed as being out of time.

15. As regards to the complaints made by Mr. Cahill concerning events prior to and at the hearing on 14 July 2025, I have listened back to the Digital Audio Recording (“DAR”) of the hearing, and am satisfied that there is no basis whatsoever for any of those complaints. Mr. Cahill says that he was sent the wrong link for the hearing. However, he did ultimately receive the correct link and Mr. Cahill was present and participated remotely for the entire of the hearing in the morning and afternoon of 14 July 2025.

16. With respect to the camera on his laptop or other device on which he participated remotely at the hearing, it is correct that his camera was not working in that he could not be seen from the courtroom. However, he could see the Court and the Board’s counsel and was in a position, for example, to refer to the fact that I had two folders of papers on the bench beside me when hearing the application. Mr. Cahill made no complaint whatsoever during the course of the hearing that he was in any way disadvantaged by the fact that he could not be seen by the Court during the course of the application. As the DAR discloses, Mr. Cahill could be heard very clearly in all of the submissions he made to the Court. I did not detect from those submissions or from the various interventions which he made in the course of the hearing that he was in any way unduly stressed or anxious as a result of the fact that the Court could not see him during the course of the hearing. No application was made by him to defer or adjourn the hearing to enable the problem with his camera to be addressed or to enable him to access the hearing using a different device.

17. I do not accept that Mr. Cahill was disadvantaged in any way by virtue of the fact that he participated at the hearing remotely in circumstances where the Court was unable to see him during the course of the hearing. He could see the Court at all times and could be clearly heard and raised no objection to the fact that his camera was not fully operational during the hearing.

18. Mr. Cahill complains that he was unable to hear counsel for the Board “very well” at some points during the course of the hearing. However, Mr. Cahill did not raise any complaint whatsoever during the hearing that he was unable to hear or understand what counsel for the Board was saying in the course of his submissions. I do not accept, therefore, that this complaint has any merit whatsoever. Nor is it relevant in any way to the issue of costs which I have to determine.

19. It is true that certain documents which Mr. Cahill wished to rely on at the hearing were not available to the Court (or, it seems, to the Board’s solicitors and counsel) at the commencement of the hearing. Mr. Cahill had emailed those documents to the relevant Non- Jury List email address some time before the hearing and, for reasons which are not clear to me, but which are, in any event, irrelevant to the question of costs, those documents were not contained in the folders of papers provided to me shortly before the commencement of the hearing. However, I agreed to adjourn the hearing for a short period to enable the documents to be located and copied. Through the diligent efforts of the Registrar, the documents were located, and copies were provided to me and to the Board’s solicitors and counsel.

20. Despite the fact that those documents were not exhibited to any affidavit sworn by Mr. Cahill and, indeed, no replying affidavit was sworn by Mr. Cahill in response to the Board’s affidavit, the Board’s counsel confirmed that he was in a position to deal with the documents. I was prepared to proceed on the basis that Mr. Cahill could refer to any of those documents in response to the Board’s preliminary objection. Having listened again to the DAR of the hearing, I did not get the sense in any way that Mr. Cahill was particularly stressed or anxious about the fact that the documents were not available at the commencement of the hearing. The documents were provided to me following a short adjournment and were referred to both by counsel for the Board and by Mr. Cahill in the course of their respective submissions. I made it clear at the end of the hearing when I was reserving judgment that I would carefully consider Mr. Cahill’s documents. I made reference to the documents at para. 19 of the principal judgment. I referred to what the documents were and to the fact that I informed Mr. Cahill that I would review those documents when considering the papers for the purposes of preparing my judgment. I did precisely that. However, I concluded at para. 19 of the principal judgment, that none of the documents were relevant to the preliminary objection raised by the Board on the timing of the appeal. I am satisfied, therefore, that there is no basis for Mr. Cahill’s complaints arising from the fact that the documentation was not available at the commencement of the hearing. After a short adjournment, the documents were made available and were considered by me in the principal judgment. They were not in any way relevant to the timing issue which was the subject of the Board’s preliminary objection.

21. It is true that the submissions made by the Board’s counsel took longer than those made by Mr. Cahill in response. However, the Board’s counsel had to open the application and refer to the pleadings and affidavit evidence, as well as the Board’s written submissions and supporting case law. Mr. Cahill was allowed as much time as he wanted to present his case in response. He was not rushed in any way in doing so. Mr. Cahill chose not to address the legal submissions and case law referred to by the Board’s counsel, as was his entitlement.

22. While Mr. Cahill made very brief submissions on the timing issue (which were considered by me in the principal judgment), most of the submissions he made were directed to his complaints about the substance and merit of the Tribunal’s decision and determination (and the determination order made by the Board), and not to the timing issue. A great deal of latitude was afforded to Mr. Cahill in making his submissions. He was afforded as much time as he required and was not closed down in any way when making his submissions. Indeed, after I indicated at the end of the hearing, having heard the Board’s counsel’s brief reply to Mr. Cahill’s submissions, that I would be reserving my judgment, Mr. Cahill sought to raise some additional points arising from his documents, which did not seem to be immediately relevant to the timing issue, and I permitted him to do so. I also made clear that I would consider the documents when reviewing the papers for the purposes of my judgment. According to the DAR, Mr. Cahill expressed his appreciation for that. As I made clear at para. 19 of the principal judgment, I did consider the documents when preparing my judgment. They were not remotely relevant to the timing issue. There is no basis for Mr. Cahill’s complaints in relation to the documents. They were not relevant to the timing issue and are not relevant to the issue of costs.

23. Mr Cahill made no complaint at the hearing that he had not received any of the papers comprising the Board’s application and it was confirmed to me at the outset of the hearing by counsel for the Board that Mr Cahill had been provided with the same two folders of papers as were provided to me. I do not accept, therefore, that he did not have the relevant papers for the application.

24. I am satisfied, therefore, that, as the Board was “entirely successful” in its preliminary objection as a result of which Mr. Cahill’s appeal has been dismissed, the Board is entitled to its costs of the application determining the preliminary objection and of the proceedings. There is no basis on which I could depart from the general default position set out in s. 169(1) of the 2015 Act. There are no special circumstances in this case on the basis of which it could be said that the interests of justice might require the Court to depart from the general rule. Nor is there any basis for any of the complaints made by the Mr. Cahill concerning events prior to and at the hearing on 14 July 2025. His complaints in relation to the merits of the Board’s determination order and the determination and decision of the Tribunal are not relevant to the timing issue and are not relevant to the issue of costs which I have to decide.

25. In conclusion, therefore, for the reasons set out above, the Board is entitled to an order for costs against Mr. Cahill in respect of the costs of the application to determine the preliminary objection and of the proceedings (to include any reserved costs and the costs of written submissions). An order will now be made giving effect to the dismissal of Mr. Cahill’s appeal (for the reasons set out in the principal judgment) and for the order for costs which must now be made in favour of the Board.