High Court dismisses costs application against Francesca De Cataldo and orders removal of disputed items from defendant's premises.

Neutral Citation Number: [2011] IEHC 475

THE HIGH COURT

2008 3200 S

BETWEEN

SUNDOGS ROCK PRODUCTIONS LIMITED

PLAINTIFF

AND

VAL TIMON

DEFENDANT

Judgment of Mr. Justice Hedigan delivered on the 16th day of December, 2011.

1. On the 21st July, 2011 this Court refused the plaintiff’s claim against the defendant for the sum of €75,551.05. Arising out of that

ruling the defendant now seeks:-

(a) An Order pursuant to Order 15, Rule 13 joining Francesca De Cataldo of Duncas, Killiney Hill Road, Killiney, County

Dublin as a co-defendant in the above entitled proceedings, for the purpose of having an Order for costs made against

her personally.

(b) Further, and/or in the alternative, an Order pursuant to Rule 53 of the Supreme Court of Judicature (Ireland) Act,

1877 directing that Francesca De Cataldo of Duncas, Killiney Hill Road, Killiney, County Dublin should be liable for the costs

of the proceedings herein;

(c) An Order directing and requiring that the Plaintiff and/or Francesca De Cataldo remove from the Defendant’s premises

the following items set forth in the Plaintiff’s invoice dated the 1st of August, 2008 ( of which items numbered 7,31,46,

and 98 below were part delivered only):

2. Blue Antique Rug

3. Blue and Red Wool and Cotton Rug

4. Brass tall ashtray with glass top

5. Cooler Box

6. Gilded 4 seater 19th Century Couch

7. Real pine kitchen table and two long benches

8. Real pine kitchen dresser

9. 3 Double size goose feather duvets

10. Avoca wool blankets

12. Mirror only of an Art Craft dresser with Mirror and mother pearl inlay

15. 8 pillows in goose feather

16. Set of 5 pans same colour as kitchen dresser and kitchen table

17. Coffee maker

18. Electric coffee maker

19. Full set of cutlery

20. 2 Amethyst caves

21. 10 Goose feather cushions

23. Set of cups

24. Set of plates

25. 6 throws for sofas and beds

26. 6 bed covers (Double Bed size throw in Silk/Cotton)

27. 2 sets of matching cushions

28. 2 matching reproduction baroque mirrors

29. 2 seater white sofa

30. 2 seater gilded sofa

31. 4 terracotta soldier statute

33. Angel candles

34. 2 angels hand-made in ceramic

40. 1 large compost bin

41. Plates and cups for apartment

42. Large hand crafted elephant head

45. Hand crafted kitchen table

46. 3 Kitchen stools Hand craft mango wood

47. Elephant tower hand crafted wooden sculpture 2 ft high

48. Wooden frame hand crafted

52. Satellite dish

56. Crystal cluster lamp

57. 2 Bronze lamps

59. Hand crafted wooden candle holder

60. Laundry basket

61. New bedroom carpet 70% wool 30% acrylic 3.5 meters

64. Buddha mosaic lamp

66. Bathroom chrome radiator

67. Iron toilet paper holder

68. 2 Venetian Mirrors

69. 1 Venetian Mirrors 2 x 1.6m

72. Full set of cutlery and pans

89. Leather stool brown

91. Set of towels

96. 1 Tiffany style lamp

97. 1 small half moon table mahogany

99. 1 tall drawer with marble top

(D) Further or other relief;

(E) Costs.

2. The defendant’s motion for costs is grounded on an affidavit of Vallis Timon dated the 25th July 2011. A responding affidavit was

filed by Francesca de Cataldo dated the 1st November, 2011. An additional affidavit was filed on behalf of Francesca de Cataldo

dated the 5th December, 2011.

3. The first affidavit of Ms de Cataldo raises matters that are of a scandalous nature. She alleges the judge at the hearing, that is

myself, is a friend of the defendant and had made his mind up in advance of the hearing. She alleges that as a result the entire

hearing was unfair to her and biased. Needless to say, the allegation is completely untrue. Prior to his getting into the witness box I

had never met the defendant either professionally or socially. My initial questions as to his unusual name should, I would have

thought, made this quite clear. Had I any conflict in hearing this case I would have readily recused myself and taken the next case in

the list. This completely groundless allegation seems consistent with the rather bizarre behaviour of the plaintiff throughout this case

as set out in the courts judgment herein.

4. Bias on the part of a judge is of two distinct kinds. Subjective bias and objective bias. Subjective bias arises where there actually

exists a direct conflict of interest on the part of the judge. This is very unusual because judges readily recuse themselves when

necessary. The more usual ground is the second. Objective bias is where there exists grounds for a person to reasonably believe that

there exists a conflict on the part of the judge. The second ground is all about perception. Where such a perception might reasonably

be thought to arise, the judge should not sit in judgment in the matter.

5. The plaintiff has not objected to my hearing this particular application. However a question arises ipso facto from the allegation of

bias made by the plaintiff in her first affidavit herein. Clearly the plaintiff, however groundlessly, has the perception that this judge is

biased against her. I do not consider that there is any reasonable basis for this view but I think nonetheless that I ought to consider

whether I should determine this costs application because, were I to find against her, there would be very grave financial

consequences involved. It seems to me that the most practical way to resolve this question so as to avoid generating any further

proceedings, is to refuse the application in the sure expectation that my decision will be appealed by the defendant. That appeal by

the defendant will travel with the plaintiff’s appeal herein and may be determined by the Supreme Court after its decision in the

substantive action. This is particularly so because the defendant’s application to join Ms de Cataldo as co-defendant is based upon

facts already found by me in the judgment.

6. I shall therefore refuse the application insofar as relates to (a) and (b). In relation to (c) I will order that the items set forth

therein be removed by Ms de Cataldo from the defendant’s premises by the 31st January 2012. Failing this the defendant should

remove them himself and sell them by auction for the best price they can obtain. The balance due after deduction of cost of removal

and sale should be held by the solicitors for the defendant pending the determination of the appeal herein and then either applied

against any legal costs incurred or returned to the plaintiff Company as may be ordered by the Court.