High Court awards plaintiff half costs despite defendant's argument for full costs following the event.

Neutral Citation Number: [2011] IEHC 434

THE HIGH COURT

2011 409 P

Between:

The Board of Management of All Saints Church of Ireland

National School

Plaintiff

And

An tSeirbhis Chuirteanna/Courts Service

Defendant

Judgment of Mr Justice Michael Peart delivered on the 22nd day of November 2011:

1. My conclusions and decision in these proceedings is contained in a full written judgment delivered on the 6th day of July 2011. For

decision now is the question of costs.

2. In these proceedings the plaintiff obtained a declaration that an equitable easement has arisen and continues to exist in relation to

access by certain persons to All Saints School, which is adjacent to and behind the Courthouse at Mullingar. The precise nature of

that easement is set out in the Court’s order made following the delivery of judgment.

3. The plaintiff considers that since it obtained the relief which it was seeking in these proceedings, it should be awarded its costs of

the proceedings against the defendant on the basis that costs ought to follow the event, as provided for in Order 99 RSC.

4. The defendant on the other hand argues that the normal rule that costs follow the event should not be followed in view of certain

features of this case which it submits are sufficient for this Court to depart from the normal rule.

5. Firstly, the defendant points to the fact that the plaintiff’s case as originally pleaded was resiled from, or at least altered when the

case was opened, to the extent that a much more restricted or limited easement was contended for than that originally sought in the

plaintiff’s Statement of Claim in that the plaintiff had originally sought an unfettered right of way, not only for pedestrians but for

vehicles also, and not only over the pedestrian way provided later by the defendant, but over the entire of the Courthouse grounds.

6. Secondly, the defendant submits that the equitable easement which the Court declared following judgment is so like the nature of

the irrevocable licence which was offered to the plaintiff before ever these proceedings commenced, and which was rejected out of

hand by the plaintiff on the basis that it did not recognise a legal right of way in favour of the pupils of the plaintiff school and others

having reasons, business or otherwise, to have access to the school, that the defendant ought not to have to bear the costs of

what the defendant considers to have been unnecessary proceedings.

7. The defendant also seeks the costs of an unsuccessful application for an interlocutory injunction by the plaintiff, those costs

having been reserved to the hearing of the case, and submits that the appropriate order for costs should be that each side should

bear its own costs of these proceedings.

8. Order 99 RSC provides that costs should follow the event unless the Court can identify and state in its order some special reason

why the normal rule should not apply.

9. There is no doubt that the claim as originally pleaded by the plaintiff was for a legal right of way, and not simply limited to a

particular access route, but generally over the grounds of the Courthouse, but also not only for students and other persons visiting

the school but for vehicles also. There is no doubt also that this claim was modified through Counsel at the opening of the case. The

question of a right of way to include vehicles was abandoned in favour of one restricted to persons wishing to have access to the

school on foot. The question of whether the plaintiff was persisting in its claim that it had a right of way over all of the Courthouse

grounds or whether it was restricted to a particular route which had been made available by the defendant over the years is not so

clear. But one way or another, it was clear from Counsel that the plaintiff was no longer making a claim for a right of way as such,

but rather an equitable easement amounting to a right of way in relation to access to the gate at the rere of the Courthouse.

10. The offer of an irrevocable licence in favour of the plaintiff school in respect of pupils attending the school and confined to a

particular route, the details of which are set out in my judgment, has been described in my judgment as having been a reasonable

offer by the defendant in all the circumstances of the dispute between the parties and was one which if accepted would have

accommodated to a great extent the needs of the pupils. The declaration made by me following judgment was somewhat wider than

the offer made, but in my view not significantly so.

11. Given the nature of the declaration made by this Court, it seems to me that the normal rule should be departed from to an extent

given what I regard as a special reason, namely the letter of offer by the defendant of an irrevocable licence, and more especially

because of the manner in which the claim being advanced by the plaintiff was significantly reduced or altered when the case was

opened. It was an appropriate reduction in my view, and reflected more the reality of the relief which was open to the plaintiff in all

the circumstances of the case. It would be an injustice to the defendant for it to have to bear the entire costs of these proceedings

which could have been avoided if a more flexible approach had been taken by the plaintiff to the offer of the irrevocable licence prior

to the commencement of the proceedings.

12. In conclusion therefore, there is no doubt that the defendant is entitled to the costs of the unsuccessful application for an

interlocutory injunction, and I award those to the defendant against the plaintiff, as I can identify no special reason why the normal

rule should be departed from.

13. As to the costs of the proceedings themselves, I consider that it is fair and just to award to the plaintiff one half of the costs of

the proceedings, those costs to be taxed in default of agreement, and further that there should be a set-off as between the

plaintiff’s said one half costs of these proceedings and the defendant’s costs of the application for the interlocutory injunction, with

the balance being paid to the party in whose favour that balance lies, by the other party.

14. I will so order.