Plaintiff awarded costs despite partial success due to defendant's conduct and unsuccessful liability challenge.

THE HIGH COURT

[2025] IEHC 517

Record No. H.C.A. 2024.8

Between

AB

Plaintiff/Respondent

and

MW

Defendant/Appellant

Ruling of Mr. Justice Conor Dignam delivered on the 3rd day of October 2025

1. I delivered judgment in the above matter on the 1 st May 2025. This ruling deals with the question of costs. It must be read together with the substantive judgment ([2025] IEHC 242). As that judgment was being delivered electronically, at the conclusion of the judgment I indicated a provisional view in relation to costs. That view was that the plaintiff is entitled to her costs notwithstanding that the award is less than the award in the Circuit Court. This was in circumstances where the defendant ran the appeal on the basis that the plaintiff should not obtain any damages, including bringing an application under section

26 of the 2004 Act, but the plaintiff established her entitlement to damages. This view was subject to submissions from the parties, if they wished to make such submissions. Both parties did so. I have considered both sets of submissions.

2. Costs are governed by section 168 and 169 of the Legal Services Regulation Act 2015 and Order 99 of the Rules of the Superior Courts. Section 168 and Order 99 maintain an overall discretion in relation to costs. Section 168 provides, inter alia:

“(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 time during, those proceedings—

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

3. Section 169 of the 2015 Act provides, inter alia:

“(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.”

4. Order 99 of the Rules of the Superior Courts provides, inter alia:

“2. Subject to the provisions of statute (including sections 168 and 169 of the 2015 Act)

and except as otherwise provided by these Rules:

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

(2) No party shall be entitled to recover any costs of or incidental to any proceeding from any other party to such proceeding except under an order or as provided by these Rules.

(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.

(4) An award of costs shall include any sum payable by the party in favour of whom such an award is made by way of value added tax on such costs, where and only where such party establishes that such sum is not otherwise recoverable.

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

3. (1) The High Court, in considering the awarding of the costs of any action or step in any proceedings, and the Supreme Court and Court of Appeal in considering the awarding of the costs of any appeal or step in any appeal, in respect of a claim or counterclaim, shall have regard to the matters set out in section 169(1) of the 2015 Act, where applicable.

(2) For the purposes of section 169(1)(f) of the 2015 Act, an offer to settle includes any offer in writing made without prejudice save as to the issue of costs.”

5. Murray J in the Court of Appeal considered the costs regime in Chubb European Group SE v Health Insurance Authority [2020] IECA 183. At paragraph 19 of his judgment he set out the applicable principles:

“(a) The general discretion of the Court in connection with the ordering of costs is preserved (s.168(1)(a) and O.99, r.2(1)).

(b) In considering the awarding of costs of any action, the Court should ‘have regard to’ the provisions of s.169(1) (O.99, r.3(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 (s.169(1)).

(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’ (s.169(1)).

(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 (s.

169(1)(a) and (b)).

(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 (s.168(2)(d)).

(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 (O.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 (s.168(2)(a)).”

6. The substantive matter came before me by way of appeal by the defendant from Dublin Circuit Court. The plaintiff had been awarded €59,742.32 in the Circuit Court. I awarded the plaintiff €50,868.

7. The defendant contests the plaintiff’s entitlement to costs on the basis that she was not entirely successful because he succeeded in reducing the plaintiff’s award of general damages and special damages (paragraph 2 of his written submissions) and because she either did not pursue or did not succeed on some specific aspects of her claim. He also contests her entitlement to costs, or at least to full costs, even if she was entirely successful, on the basis of some specific factors in the context of the matters set out in section 169(1)(a)-(g). There is an overlap between the aspects of her claim on which she was not successful or she did not pursue and the factors which must be considered in the context of section 169(1)(a)-(g). The defendant also raised a number of points in his written submissions which go to the merits of my substantive decision rather than to the question of costs.

8. I am satisfied that the plaintiff was entirely successful notwithstanding that the award in this Court is lower than in the Circuit Court. I am also satisfied, having had regard to the matters in section 169(1)(a)-(g) and the factors relied upon by the defendant, that the plaintiff is entitled to her costs in this Court and in the Circuit Court. I should also say that I am of the view that, even if I am incorrect that the plaintiff has been entirely successful, she is entitled to her costs. I am of these views for the following reasons. I deal with each of them in turn though there is considerable overlap.

9. I am of the view that the plaintiff was entirely successful notwithstanding that the award of damages is less than the amount awarded by the Circuit Court. The position of the defendant that she was not entirely successful because she did not obtain as much in this Court as in the Circuit Court is an entirely artificial approach in the circumstances of this case and disregards the way the case was run by him, i.e., where he sought to contest all matters, including liability and that the plaintiff had any entitlement to damages, and to have the claim dismissed.

10. The hearing in the Circuit Court proceeded as an assessment on the basis that the plaintiff had obtained judgment in default of defence. The defendant had the option of dealing with the appeal on the basis of the appropriate amount of damages; in other words contesting it as an assessment. He did not do so. As discussed in my substantive judgment, the defendant submitted at the outset of the hearing that the appeal should proceed as a full appeal, i.e., on the questions of liability and quantum. The defendant therefore sought to compel the plaintiff to prove liability and to establish any entitlement to damages. The plaintiff was successful in defeating that approach and in establishing her entitlement to an award of damages. In those circumstances, she was entirely successful in her appeal.

11. The defendant also made an application pursuant to section 26 of the Civil Liability and Courts Act 2004 to dismiss the plaintiff’s claim on the basis that she had given false or misleading evidence. The plaintiff successfully defeated that application.

12. The defendant, in his written submissions on the question of costs, also advanced a number of specific factors which he says must be taken into account. The factors identified by the defendant include the following:

(i) That the plaintiff claimed in the Personal Injury Summons that the defendant punched her and this was not pursued at trial (at the appeal);

(ii) That the plaintiff made a claim of “ongoing threats to the plaintiff, her family, and her staff” in the plaintiff’s Replies to Particulars of the 2 nd July 2013 and this continued in the plaintiff’s Updated Particulars of Personal Injury of the 3rd November 2023;

(iii) That the plaintiff made a special damages claim for security cameras at a business premises on foot of a bill made out to a limited liability company rather than to the plaintiff personally;

(iv) That she also made a special damages claim for the attendance at other Court hearings for staff employed by that company;

(v) That the amount awarded in respect of the plaintiff’s special damages claim for medical costs was significantly below the figure claimed by the plaintiff’s solicitor;

(vi) That the plaintiff’s Counsel called the case on for one day and it lasted two full days plus two half days and this was caused “due to the contents of Anne O’Connell’s two reports, such contents being ruled as containing ‘bad facts’ (for lack of an alternative expression)”.

13. While the defendant does not explicitly say so, it seems to me that one reason he raises these matters is to submit that the plaintiff was not “entirely successful” (and that the Court should not award the plaintiff her costs or her full costs) because she did not succeed in proving or did not pursue certain matters which were part of her claim.

14. The mere fact that a plaintiff does not pursue or is not successful in respect of various individual items contained in their claim does not in itself mean that they are not entirely successful. The question of whether a party is “entirely successful” must be taken in the round in the context of the overall circumstances.

15. Thus, while the plaintiff did not establish an entitlement to her claim for the cost of installing security cameras or of employees of the crèche attending at court hearing dates and did not establish an entitlement to the full amount of medical expenses, these were relatively minor matters in the context of the claim as a whole. Similarly, even if the plaintiff had pleaded that the defendant had punched her but then did not maintain the allegation, this is of little significance in the context of the overall claim of assault.

16. The defendant’s reliance on some of these factors is also factually misconceived.

17. The premise of the defendant’s argument that the plaintiff pleaded that the defendant punched her and then did not pursue that claim is misplaced. The plaintiff’s pleas in respect of being “punched” are as follows: (i) “The Defendant was aggressive and did attack and strike the Plaintiff to the face and body a number of times, including headbutting the Plaintiff...” (paragraph 4 of the Personal Injury Summons); and (ii) “Wrongfully and unlawfully punching and/or striking the Plaintiff to the face and body” (paragraph 5(c) of the Personal Injury Summons). The plaintiff’s evidence was very clear that the plaintiff repeatedly banged her arm to dislodge her hand from the handle of a door. I am satisfied that this is encompassed in the claim that the defendant unlawfully punched and/or struck the plaintiff to the face and body. It is therefore incorrect to say that she did not pursue the claim that she had been punched

18. In relation to the second factor raised by the defendant, the position is not quite as clear. The defendant makes the point that the plaintiff claimed in her Replies to Particulars of 2nd July 2013 that there were ‘ongoing threats to the plaintiff, her family, and her staff’ and that this continued in Updated Particulars of Personal Injuries of the 3 rd November 2023 and that she then did not give evidence of same. I deal with the plaintiff’s evidence in relation to threats and harassment at paragraphs 46, 66, 67 and 82 of my substantive judgment. In fact this description of what is said in the Replies to Particulars and Updated Particulars is not fully accurate.

19. At paragraph 3 of the Replies to Particulars the plaintiff states “...in addition to the initial incident on 4 th January 2012 as set out in the Personal Injury Summons the Defendant also attended on the Plaintiff’s premises on the 26 th March 2012 and issued threats to the Plaintiff and her staff. There has been continuing harassment of the Plaintiff by the Defendant and Further Particulars will be furnished if appropriate. On both occasions on which the Defendant attended on the Plaintiff’s premises in January and March 2012 he was taken away by the Gardaí. In general, the Plaintiff and her staff have been harassed by the Defendant by way of phone calls and emails and evidence will be given at the Hearing of this Action concerning same.”

20. In the Updated Particulars of Personal Injury, she says that “The Plaintiff has suffered threats and harassment in the aftermath of the incident the subject matter of the proceedings with stress exacerbated by the long, drawn out nature of Court proceedings and the Defendant’s criminal prosecution with the negative behaviour of the Defendant when questioning and conducting himself in Court.” The only other references to harassment and threats in the Updated Particulars is that “[T]he Defendant has continued to be verbally abusive and challenging to the Plaintiff when in court wherein he continues to represent himself in an egregiously aggravating manner.”

21. Thus, the claim in relation to “ongoing harassment of the plaintiff, her family, and her staff” refers to the period between the incident on the 4 th January 2012 and the delivery of the Replies to Particulars on the 2nd July 2013. During that period, according to the Replies to Particulars, the plaintiff and her staff were harassed by phone calls and emails from the defendants. Evidence was given, and not really disputed, that the defendant did attend at the crèche on a subsequent occasion and was taken away by the Gardaí and that he was emailing the crèche for a period between January 2012 and July 2013 (i.e. January 2012 and July 2013). The 2023 Updated Particulars simply say that “The Plaintiff has suffered threats and harassment in the aftermath of the incident...” It does not state a particular period of time and seems to me to refer to the threats and harassment which were alleged in the Replies to Particulars. The only reference to continuing verbal abuse in the Updated Particulars is to the defendant’s conduct at various court hearings.

22. These particulars could all have been stated with greater precision and clarity but I am not satisfied that the plaintiff pleaded a case that was then not pursued at the hearing.

23. Thus, I am not satisfied that these factors mean that the plaintiff was not entirely successful.

24. The defendant also relies on the factors listed above to submit that even if the plaintiff was entirely successful, she should not obtain costs and certainly not full costs, having regard to the provisions of section 169. It will be recalled that the plaintiff is entitled to her costs unless I order otherwise “having regard to the particular nature and circumstances of the case, and the conduct of the proceedings by the parties, including” the matters set out in section 169(1)(a)-(g) of the 2015 Act

25. I do not accept that she is not entitled to her costs. I have already dealt with the substance of some of these factors and do not propose to repeat that discussion. Furthermore, the defendant submits that the plaintiff’s Counsel called the case on for one day and it lasted two full days plus two half days and that this was caused “due to the contents of Anne O’Connell’s two reports, such contents being ruled as containing ‘bad facts’...” I do not accept that this is an appropriate case in which to parse the length of time spent on different items at the hearing. The way the case was run, including by the defendant, does not permit of such an exercise. Furthermore, even allowing for the assertion that Ms. O’Connell’s reports contained “bad facts” (the defendant’s language), one of the reasons for the case taking longer than it should have was the defendant’s cross-examination of Ms. O’Connell, which even allowing for “bad facts” was unnecessarily lengthy. I also have had regard to the fact that a period of time was taken up with the defendant’s argument that the appeal should be treated as an appeal against liability as well as quantum. Finally, it was not unreasonable for Counsel for the plaintiff to give a time estimate of one day in circumstances where it was an appeal against quantum only, and where the defendant had not appeared in the Circuit Court and therefore no guidance could be derived from how long the case took in the Circuit Court. Furthermore, there is no evidence that the defendant objected to the time estimate of one day.

26. Finally, as indicated above, even were I of the view that the plaintiff was not entirely successful (or that my view that she was entirely successful was wrong) I would nonetheless be satisfied, having regard to the overall circumstances that she is entitled to her costs. My reasons for this are largely the same as set out above: the defendant sought to contest liability and the plaintiff’s entitlement to any damages, including making an unsuccessful application under section 26; and while the plaintiff was not successful in respect of or did not pursue some specific aspects of her claim, these were relatively minor things (in this regard it is also important to note that the claims in respect of costs incurred by the business were not pursued as soon as it was pointed out that they were costs of the business).

27. In all of those circumstances, I will make an Order for the plaintiff’s costs in this Court and the Circuit Court to include any reserved costs.

28. The defendant also seeks a copy of the transcript of the DAR of the hearing. I will order that this be made available to him on his undertaking to bear the costs of same.