Civil Parties and Costs and Initiating Letters PDF

13 Clearly a Plaintiff must join every party necessary in order to ensure that the action is properly constituted. It is important not only that each party is properly identified but also correctly named in the action. In most cases it is not difficult to identify and name the correct party but ther...

13 Clearly a Plaintiff must join every party necessary in order to ensure that the action is properly constituted. It is important not only that each party is properly identified but also correctly named in the action. In most cases it is not difficult to identify and name the correct party but there are many instances where the issue is less straightforward. The following sections identify the most common of these. The rules governing the joinder of parties to proceedings is governed by Order 15 of the Rules of the Superior Courts and Order 6 of the Rules of the Circuit Court, Order 43 District Court Rules. See the recent judgment of the Supreme Court in Hickey v. McGowan & Ors IESC 6 on inter alia vicarious liability, the joinder of parties and the consequences of failure to join the correct defendants to an action. While the case dealt with a range of legal issues in respect of the parties sued of relevance here is that it dealt with Section 35(1)(i) of the Civil Liability Act 1961 which provides that, for the purpose of determining contributory negligence Limitations or any other limitation enactment, the plaintiff shall be deemed to be responsible for the acts of such wrongdoer been committed against a Plaintiff by a number of concurrent wrongdoers and the Plaintiff, when bringing his action in respect of that wrong, does not sue one of them within the relevant statutory period, then the Plaintiff must bear that loss i.e. Section 35(1)(i) provides that the liability of that concurrent wrongdoer shall be deemed to be contributory negligence on the part of the Plaintiff. See also Kehoe v. RTE IEHC 340 in relation to Section 35(1)(i) and defamation proceedings. Where the claim is against the State the proper Defendants are Ireland and the Attorney General. The Attorney General is joined as the Law Officer of the State and in order to facilitate proper service. It is only appropriate to bring an action against the Government where the wrong complained of arises out of an act or decision of the executive and the Government is being sued collectively. In this case there are two ways in which the parties may be identified: It is usual to name the following as Defendants: (1) The Taoiseach. (2) The Tánaiste. (3) Each Minister who is a member of the government should be named individually and according to his or her office and title. © The Honor 3-2024 14 (4) The Attorney General. (5) Ireland. It is also permissible to name the Government of Ireland. Each Minister of the Government is a corporation sole with perpetual succession. Any proceedings taken by or against a Department of State are taken in the name of the appropriate Minister. As regards the defence forces, claims are generally made against the Minister for Defence, Ireland and the Attorney General save where the damage or loss arises in connection with a mechanically propelled vehicle in which case (by virtue of Section 59, Civil Liability Act 1961 as amended by SI 418/2011) the appropriate Defendant is the Minister for Public Expenditure and Reform (previously the Minister for Finance)). Similarly, where claims are brought against the An Garda Síochána or against a prison, Ireland and the Attorney General will be parties. However, in these cases the Commissioner of an Garda Síochána or the Governor of the relevant prison must be joined. The Minister for Justice may or may not be joined depending on whether the issues in the proceedings raise questions which fall within the remit of the Minister. Generally, practitioners must use their own judgment in determining whether or not to join the relevant Minister. Claims relating to schools or teachers should be brought against the Board of Management of a school and practitioners should think carefully as to whether it is appropriate to join the Minister for Education and Skills. The Minister for Education and Skills is not responsible for the management of individual schools and is not the employer of individual teachers (see 2 IR 302; Hickey v. McGowan & Ors. IESC 6). The Attorney General is also a necessary party to certain types of action. First s/he must be a party to an action where the constitutionality of any law is challenged in an action. If s/he is not already a party, the party having carriage of the proceedings must serve a notice upon the Attorney General (see Order 60 Rule 1 RSC). Furthermore, if in any action the interpretation of the Constitution is or becomes an issue, Order 60 Rule 2 obliges the party having carriage of the action, if the court so directs, to serve a notice on the Attorney General. The notice must state the nature of the proceedings in which the question arises and contentions being made by the parties. Service upon the Attorney General entitles him or her to become a party (a notice party) to the action with regard to the constitutional question in issue. Order 60A, Rule 2 RSC requires that notice be served on the Attorney General and the Human Rights and Equality Commission where proceedings seek a declaration of incompatibility with the European Convention on Human Rights in accordance with Section 5(1) of the European Convention on Human Rights Act 2003. In addition to questions of constitutionality, the Attorney General is the guardian of public rights (which by their nature do not vest in an individual) and thus when such rights exist and are the subject of litigation the Attorney General, as the legal representative of the general public, must become a party to the action in question. © The Honor 3-2024 15 The types of public rights are varied but the most common are public rights of way (although there is now a duty imposed by statute on local authorities in this regard) and public interest matters generally (see the Campus Oil Ltd v. Minister for Industry and Energy (No. 2) IR 88). As public rights do not vest in individuals, an individual has no right to bring an action seeking to enforce a public right. In such cases an interested party may commence a relator action or convert an existing improperly constituted action into a relator action. That is to member of the public. In such cases the Attorney General is the sole Plaintiff although the relator and his solicitors have carriage of the action. The relator must undertake to pay the costs of the proceedings and undertake to pay any damages. Although the relator has carriage of the action the Attorney General is the Plaintiff and he must be kept informed of of the pleadings, which the relator proposes to take. Partners in a firm may bring or defend proceedings in the name of each partner who was a partner in the firm at the time the cause of action accrued. The firm may also be sued in the firm name (see RSC Order 14, CCR Order 8). This is in essence shorthand for naming all the partners in the firm. Partnerships are not separate legal entities and a fresh partnership arises on each change of partners in a firm. Accordingly, care is required to ensure that the firm name used is that which existed as at the date of accrual of the cause of action. Similarly, if the partners are named individually they must have been the partners who were partners as at the date of accrual. The rules make provision for the disclosure of motion should identity present a problem. Where the names of the partners are used the heading of the action should indicate the business name. For example, if the partners in a firm of solicitors are sued individually the following is appropriate: Peter Smith and Edward Jones practising under the name [or under the style and title] of Penny & Farthing Solicitors or, if suing in the name of the respective firm Penny Farthing Solicitors (A Firm) If suing in the name of the respective firm (see above), then in the paragraph of the claim describing the Plaintiff, each of the individual partners (who were partners at the material time) should be named. © The Honor 3-2024 16 The Legal Services Regulation Act 2015 provides for Limited Liability Partnerships (LLPs). The Act provides that a partnership of solicitors may apply to operate with limited liability in respect of debts, obligations or liabilities of the LLP. Under the required to apply to the Legal Services Regulatory Authority (LSRA) for authorisation to operate as such. If suing a relevant business with authorisation to operate as an LLP using the previous example the following would be appropriate: Penny Farthing Solicitors LLP Following the commencement of the Courts and Civil Law (Miscellaneous Provisions) Act 2023 (see Part 10), the LSRA confirmed that it would commence consultations on regulations to introduce partnerships between barristers and solicitors, or between groups of barristers, as envisioned by the LSRA Act 2015. Order 14, Rule 11 RSC and Order 8, Rule 7 CCR provide that any person carrying on business under a name other than his or her own name which is not registered pursuant to the Registration of Business Names Act 1963), may be sued in such name. For example: John Murphy trading as Murphy Supplies Trustees, executors and administrators may sue and be sued in their own name without joining in the beneficiaries under the trust or estate (unless the court orders otherwise). The proceedings should make clear, however, that such parties are suing or being sued in a representative capacity and not personally. Where they are suing or are being sued in both capacities (i.e. personal and representative) this should be made clear in the summons or pleading. Particular care is needed when a trustee, executor or administrator is joined as a party to an action (either as Plaintiff or Defendant). While the costs of proceedings will generally come out of the trust or estate this is not so where the trustee, executor or administrator has acted unreasonably in bringing or defending an action. In such cases the office holder may end up bearing the costs personally. Trustees and executors must also be careful to act neutrally between beneficiaries, as taking an active part in a dispute between beneficiaries will particularly expose the office holder to the risk of a personal costs order. Unincorporated associations have no legal existence and if an action is to be brought or defended it must be through its trustee\office holders. This requires an identification of the © The Honor 3-2024 17 persons in question. Note, however, the judgment of Charleton J in Sandymount & Merrion Residents Association v. An Bord Pleanala IEHC 291 (approved by Clarke J in the Supreme Court IESC 51). Charleton J acknowledged the traditional position, at common law, that an unincorporated body does not have legal personality and, thus, cannot bring either a public or private law action. However, he held that this inability is capable of being removed by legislation granting capacity to such bodies [the legislation in that instance being Section 50A of the Planning & Development Act 2000 (as amended)]. See Hickey v. McGowan & Ors IESC 6. Both the RSC (Order 15 Rule 9) and the CCR (Order 6 Rule 10) make provision for representative actions. These are actions where numerous persons have an interest in a cause or matter in the same capacity. authorisation for a named individual or individuals to bring an action representing the class of persons interested in the same matter. The consent of the person who is willing to act in the representative capacity must, of course, be obtained and the court will need to be satisfied that such consent exists. Once the order is made the representative may sue on behalf of all those named in the grounding affidavit and the action binds them accordingly as if they were individually named as parties. Where such an order is in force the indorsement of claim must identify the capacity in which the representative party brings or defends an action. In the Circuit Court no representative action may be brought where the action is founded in tort. There is no overarching system for collective redress or class actions in existence in Ireland at present. EU Directive 2020/1828 was published in the Official Journal (OJ) on the 4th December 2020. It repeals Directive 2009/22/EC. Recital 7 of 2020/1828 states that its purpose is to ensure that at Union and national level at least one effective and efficient procedural mechanism for representative actions for injunctive measures and for redress measures is available to consumers in all Member States. Each Member State is to designate at least one ualified Entity to bring such actions (national and cross border) on behalf of consumers. Directive 2020/1828 was implemented into Irish law by the Representative Actions for the Protection of the Collective Interests of Consumers Act 2023 which was signed by the President on 11 July 2023 (note: not yet commenced),. The Act creates a new civil border representative actions, on behalf of groups of consumers, to pursue breaches of EU © The Honor 3-2024 18 and Irish consumer protection law. Qualified Entities will be designated by the Minister for Enterprise, Trade and Employment following an application process. The body or organisation must be independent, non-profit legitimate interest in protecting consumer interests (available on oireachtas.ie) indicates that organisations likely to be designated as Qualified Entities include those with existing supervisory or enforcement competence in the financial services industry, for example the Central Bank of Ireland, Competition and Consumer Protection Commission and the Financial Services and Pensions Ombudsman. The Representative Actions Act 2023 appears to envision future third-party funding of class actions but does not provide a mechanism whereby such third-party funding can be provided. It may be that further legislative reform is needed to provide for third-party funding of class or representative actions in Irish law. Special rules apply in relation to actions by and against persons who are under 18 years of age (minors) and persons who are under a disability. Neither group is regarded as sui juris and thus cannot bring or defend proceedings on their own. Order 15 RSC, Order 6 CCR, Order 43 DCR ad litem person who consents to act in such capacity. e.g. Mary Doe, a minor (suing by her mother and next friend Deirdre Doe [or defending by her guardian ad litem Deirdre Doe]). Where proceedings are brought on behalf of a minor the consent of the next friend should be filed in the Central Office/Circuit Court Office at the same time the summons/civil bill is issued. Where the minor comes of age prior to the action concluding the next friend or guardian may apply on affidavit for a certificate that the Plaintiff or Defendant may continue to prosecute or defend the action in his/her own name. In the High Court such an application is made to the Central Office (Order 15, Rule 16) seeking to amend the title to the proceedings to describe the party lately an infant as proceeding or defending in his own name. Order 19 of the Circuit Court Rules (side bar orders) provides for a similar application to be made to the Circuit Court Office and the order is made by the County Registrar. The evidence required is usually produ For the District Court see Order 43, Rule 14. Such applications must be made before the former minor may continue the action in his own name. If application is not made the action continues in the name of the next friend or guardian notwithstanding the coming of age of the former minor. © The Honor 3-2024 19 Wards of court/persons of unsound mind: the procedure in this area has changed radically with the introduction of the Assisted Decision-Making (Capacity) Act 2015 which was commenced in April 2023. The Lunacy Regulation (Ireland) Act 1871 has been repealed by the 2015 Act. The 2015 Act provides that all wards of court must be reviewed and dealt with under the Act within a three-year period of its commencement. Until a ward of court is reviewed and discharged from wardship, the procedure remains that the ward may sue or defend by his or her committee of the estate (appointed by the Court). The 2015 Act provides that an order can be sought for the appointment of a decisionmaking representative to institute, prosecute or defend proceedings. There is a large amount of information available on courts.ie and also on decisionsupportservice.ie. Order 6, Rule 8 of the Circuit Court Rules as amended by SI 201 of 2023 now provides: -Making (Capacity) Act 2015 , and expressions used have the meanings assigned to them by the 2015 Act. (2) Where there is in force in respect of a relevant person a decision-making representation order which authorises a decision-making representative appointed in respect of the person to institute, prosecute or defend such proceedings, the relevant person shall sue or defend by his or her decision-making representative, and service on the decision-making representative shall be good and sufficient service. (3) Where there is in force in respect of a relevant person as the donor a registered enduring power of attorney in respect of which a notification of lack of capacity has been accepted, or defence of proceedings, the relevant person shall sue or defend by his or her attorney, and service on the attorney shall be good and sufficient service. (4) Where there is in force in respect of a relevant person as the donor a registered enduring to the institution, prosecution or defence of proceedings, the relevant person shall sue or defend by his or her attorney under the Act of 1996, and service on the attorney under the Act of 1996 shall be good and sufficient service. (5) Where there is in force in respect of an intending party or party to proceedings as the appointer a registered co-decision-making agreement which provides for the making jointly by the appointer and a co-decision-maker of decisions concerning proceedings, the originating document or defence, and each subsequent document delivered in the proceedings shall be signed by, or shall include a certificate that the decision to issue and deliver same was made jointly by, the appointer and co-decision-maker. (6) Where any issue arises as to, or arising from, the capacity of any adult party to proceedings, the Court may, of its own motion having heard the parties, or on the application by motion on notice of any party, or person sufficiently interested, make such orders or give such directions concerning the further conduct of the proceedings as are necessary in the interests of justice. (7) A ward of court may sue or defend by his or her committee. Order 15, Rule 17 RSC as amended bySI261 of 2023 sets out similar provisions. © The Honor 3-2024 20 The District Court Rules Order 43 has not been amended in respect of the 2015 Act and currently provides at Rule 10: 10. A person of unsound mind whether or not so found by inquisition may sue by his or her committee or next friend, and may defend by his or her committee or by a guardian ad litem appointed for that purpose. Quite often there are several possible Defendants to an action and the Plaintiff is unclear as to which of them is liable. In these circumstances the Plaintiff should write to each of the potential Defendants calling on them to admit liability/exonerate the other or others from liability. Such letters proceed to warn the recipients that if this process is not carried out the Plaintiff will sue each of them. If the unsuccessful Defendant has failed to exonerate the others, at the conclusion of the Defendant. © The Honor 3-2024 21 The Manager Model Supermarket Model Shopping Centre Dublin 200 [date] Re: John Smith Dear , We write to advise you that we act on behalf of John Smith. Our client advises us that he attended at your shop in Model Shopping Centre on the 20th day of September last at approximately 4.15pm. Our client has been frequenting this establishment for years and is recognised by some staff members there. After taking a small trolley, our client proceeded to do some shopping, and when finished, went to the cashier with a few items in his trolley. He had a non-transparent plastic bag with him and put same at the end of the conveyor belt whilst putting his groceries on the conveyor belt at the express checkout and waited to pay for them. Our client was standing at the end of the checkout and was packing his groceries into his bag after he had paid for same when he was approached by a security guard on your premises and falsely accused of not paying for a box of biscuits which he wrongly believed Our client was most shocked and asked the security guard if he was serious. The security guard on three occasions requested that our client empty out the contents of his bag. He declined on each occasion and whilst the security guard blocked his exit path, he placed his hand on his shopping trolley and insisted that he open the bag. Our client, who was most distressed at this stage, opened his bag and showed the security guard its contents. There was no box of biscuits in his bag. Our client was most embarrassed and upset as this scene was being witnessed by numerous customers and staff members. As you are aware this allegation was utterly malicious and false and constitutes a clear Our client is an 84-year old man who has been deeply distressed by the whole episode. He has had to attend his G.P. on a number of occasions due to the trauma of the incident © The Honor 3-2024 22 Our client is unable to say whether you or Squeaky Clean Security Company Limited was to blame for the incident. We, therefore, call on you to write to us within 28 days confirming that you accept liability for the incident and agreeing to compensate our client in full. A letter in similar terms is being sent to Squeaky Clean Security Company. If we do not receive an admission of liability from one or other of you, we have instructions to issu Company Limited without further notice. not held liable and an order is made dismissing the claim against that company with costs, an application will be made to the trial judge for an order that, in addition to damages and of the costs of Squeaky Clean Security Company Limited. This letter will be produced at the hearing of that application. Yours , Solicitors © The Honor 3-2024 23 The issue of costs is of central importance in litigation. Very often a possible settlement of the issues at stake in a case will founder because agreement cannot be reached on costs. An understanding as to the incidence of costs is vital in practice. Costs in litigation are specifically at the discretion of the Court (see Legal Services Regulation Act 2015, Sections 168 and 169 and Rules of the Superior Courts, Order 99 Rule 1 (2), Circuit Court Rules, Order 66 (1)), Order 53 District Court Rules That discretion will, however, be exercised in favour of the winning party save where there is good reason to depart from that principle in whole or in part. Legal Services Regulation Act 2015 Sections 168 and 169: Power to award legal costs 168. (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 or more other parties to the proceedings, or (b) where proceedings before the court concern the estate of a deceased individual, or the property of a trust, order that the costs of or incidental to the proceedings of one or more parties to the proceedings be paid out of the property of the estate or trust. (2) Without prejudice to subsection (1), the order may include an order that a party shall pay (b) costs from or until a specified date, including a date before the proceedings were commenced, (c) costs relating to one or more particular steps in the proceedings, (d) where a party is partially successful in the proceedings, costs relating to the successful element or elements of the proceedings, and (e) interest on costs from or until a specified date, including a date before the judgment. (3) Nothing in this Part shall be construed as (a) restricting any right of action for the tort of maintenance, or (b) restricting any right of a trustee, mortgagee or other person, existing on the day on which this section commences, to be paid costs out of a particular estate or fund to which he or she would be entitled under any rule of law or equity. © The Honor 3-2024 24 Costs to follow event 169. (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. (2) Where the court orders that a party who is entirely successful in civil proceedings is not entitled to an award of costs against a party who is not successful in those proceedings, it shall give reasons for that order. (3) Where a party succeeds against one or more than one of the parties to civil proceedings but not against all of them, the court may order, to the extent that the court considers that it is proper to do so in all the circumstances, that (a) the successful party pay any or all of the costs of the party against whom he or she has not succeeded, or (b) the party or more than one of the parties against whom the successful party has succeeded pay not only the costs of the successful party but also any or all of the costs that the successful party is liable to pay under paragraph (a). (4) Unless the court before which civil proceedings were commenced orders otherwise, or the parties to those proceedings agree otherwise, a party who discontinues or abandons the proceedings after they are commenced (including discontinuance or abandonment of an appeal) is liable to pay the reasonable costs of every other party who has incurred costs in the defence of the civil proceedings concerned until the discontinuance or abandonment. © The Honor 3-2024 25 (5) Nothing in this Part shall be construed as affecting section 50B of the Planning and Development Act 2000 or Part 2 of the Environment (Miscellaneous Provisions) Act 2011. Right to Costs - Order 99 Rule 2 (2) provides that: 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. Interlocutory applications very often result in separate costs orders which are either dealt with on the conclusion of the interlocutory hearing or which are sometimes reserved until the conclusion of the trial. Order 99, Rule 2(3) as inserted by SI 584 of 2019, appears to remove the discretion of the Court in relation to the costs of interlocutory applications except in cases where it is not possible to justly adjudicate upon liability for costs, in which case, presumably, the costs should be reserved to the trial Judge on the basis that the determination of the substantive action will produce an Further, Order 99, Rule 3(1) provides that the Superior Courts in considering the awarding of costs of any action or any step in any proceedings, shall have regard to the matters set out in Section 169(1) of the 2015 Act [see above]. © The Honor 3-2024 26 Thus, a winning Plaintiff who succeeds in his claim at trial but who has failed, for example, to make sufficient discovery and against whom the Defendant has succeeded on a motion for discovery, will recover his costs of the action but is likely to have to pay the costs of and If a claim is commenced in a higher court where a lower court has jurisdiction to determine the claim, the successful Plaintiff is not entitled to recover from the unsuccessful Defendant more costs than he would have done if the claim had been commenced in the lowest court having jurisdiction (see Section 17 (1) Courts Act 1981 as amended by Courts Act 1991 and Courts and Civil Law (Miscellaneous Provisions) Act 2013). Where the amount of damages recovered by the Plaintiff in a High Court action exceeds costs than he or she would have been entitled to recover if the proceedings had been commenced in the Circuit Court. This is subject to the Judge issuing a special certificate in cases where it is considered that it was reasonable in the interests of justice generally to bring the proceedings in the High Court. Where, in the High Court, the damages; or the amount of costs he or she would have been entitled to had the action been commenced in the Circuit Court. Furthermore in proceedings where the action was commenced in a court which is not the lowest court having jurisdiction the judge is given a specific power (Section 17(5) Courts Act 1981 as amended by Section 14 of the Courts Act 1991 and Section 19 of the Courts and Civil Law (Miscellaneous Provisions) Act 2013) where he considers it appropriate to make an order that the successful Plaintiff pays to the Defendant an amount - Any additional costs incurred by the Defendant by reason of the action not having been commenced in the lower court. An amount equal to the difference between: amount of Defendants actual taxed costs; and t which the taxing master or district registrar considers would have been appropriate if proceedings had been heard and determined in the lowest court. For proceedings [other than personal injuries] issued on or after the 3rd February 2014 (when the monetary jurisidiction of the Circuit Court and District Court increased) the limits referred to above are changed as follows: © The Honor 3-2024 27 where the amount of damages recovered by the Plaintiff in a High Court action recover more costs than he or she would have been entitled to recover if the proceedings had been commenced in the Circuit Court. This is subject to the Judge issuing a special certificate in cases where it is considered that it was reasonable in the interests of justice generally to bring the proceedings in the High Court. Where, in the High Court, the Plaintiff of: the damages; or the amount of costs he or she would have been entitled to had the action been commenced in the Circuit Court. Personal Injuries: Section 17 (as amended) states that where an action in the Circuit Court is a personal injuries action within the meaning of section 2 of the Civil Liability and Courts Act 2004, and also. Section 17 (5) Courts Act 1981 (as amended) was considered by the Supreme Court in Unreported 18th December 2003. In that case the Plaintiff had pursued an assessment of damages in the High Court but the trial judge, having found that he had exaggerated the extent of his injuries but not dishonestly, had disallowed his claim for loss of future earnings. Accordingly, order under s.17 (5) (as substituted by section 14 of the 1991 Act). The trial judge refused holding that the amount had been reduced below the High Court standard by reason of the failure of the future loss of earnings claim and that as such a failure had arisen from a mistaken but honest belief, he was not prepared to exercise his discretion against him. (on the costs issue alone) and, having held that the judge below had failed to exercise his discretion properly, exercised their own discretion in favour of the Defendant and made an order under section 17 (5). Hardiman J held as follows: In my view the sole fact which triggers the discretion is that the Plaintiff was awarded a sum, in the High Court, which a lower court would have had power to award. This fact alone does not, of course, require the Court to make an order under sub-section (5). For example, where the award is very close to the limit of the jurisdiction of the lower court or where there has been some unpredictable development during the trial which has an effect in reduction of the ostensible value of the claim, there may be good reason for exercising the discretion in favour of the Plaintiff. Here, however, the issue most relevant to the exercise of the discretion is that any realistic Statement of Claim was drafted, would have led inexorably to the conclusion that © The Honor 3-2024 28 this was a case well within the Circuit Court jurisdiction. But no such assessment took place, apparently because the Plaintiff never attempted the essential exercise of quantifying his claim for loss of earnings. In Moin v. Si IECA 240: Peart J, following a review of the case law and statute in relation to section 17 of the 1981 Act, stated at paragraph 21: in my view it is incumbent upon a trial judge in circumstances where an award is significantly within the jurisdiction of a lower Court to make a differential order unless there are good reasons for not doing so. The trial judge must have regard to the clear legislative purpose, and have regard to all the circumstances of the case at hand which are relevant to the exercise See also McKeown v. Crosby IECA 139 in this costs ruling, Noonan J considered the legislative provisions and case law regarding differential costs orders. In his conclusion he stated that while there is a wide range of circumstances where the court might properly consider exercising its discretion against making an order under Section 17(5), none such arose in the particular case. The court then made the following orders in the appeal (at para 25): (i) An order that the costs of the appeal be awarded to the defendants; (ii) The plaintiff is entitled to her costs of the High Court to be adjudicated on the basis of a (iii) The defendants are entitled to an order pursuant to s. 17(5)(a)(ii) awarding them the additional costs adjudicated to have been incurred by them in defending the case in the High Court rather than the Circuit Court. (iv) When adjudicated, the costs of each party shall be set off against each other and any surplus balance paid to the party entitled thereto. © The Honor 3-2024 29 Amount of award of damages for cases initiated up to and including 2/2/2014 Amount of award of damages for cases initiated on or after 3/2/2014 Personal Injury cases initiated on or after 3/2/2014 Costs payable by losing party cannot exceed Over 60k High Court costs Over 51k 60k Over 30k 51k 75k (Ov 38,092.14) Circuit Court costs unless certificate granted reasonable in the interests of justice generally, owing to the exceptional nature of the proceedings or any question of law contained therein Circuit Court costs (O Over 38k 64k Costs limited to the lower of either (Over 6,348.69 - Over 15k 38k Over 15k Award of damages 30k Circuit Court Costs (not exceeding Not exceeding 15k Not exceeding 15k District Court costs Order 66 of the Circuit Court Rules deals with costs. It explicitly states that where in a defended action the award to the Plaintiff could have been obtained in the District Court, the Judge may award costs to the Plaintiff on a District Court basis only plus any necessary additional outlay. The District Court fees scale is approximately one third of the Circuit Court scale, so a Plaintiff could be left with a significantly reduced costs award. District Court: see Order 53 and the schedule to District Court Rules. © The Honor 3-2024 30 The purpose of an award of costs is to indemnify the successful party against his reasonable costs. Costs are not punitive and the successful party is thus not entitled to recover more than the sum which he or she is liable to pay. This does not mean that the successful party is entitled to recover all those sums which he or she is liable to pay to his own advisors. Where costs are awarded against a party in litigation that party is entitled to have the same adjudicated (formerly kno by the Legal Costs Adjudicator/Office of the Legal Costs Adjudicators of the High Court (formerly the Taxing Master) or County Registrar (Circuit Court). Students should be aware that they will be expected to address the issue of costs at the conclusion of all applications they make or resist in Court. The winning party in a case or a motion is usually entitled to costs on the basis that costs follow the event. When a judgment is handed down, the party in whose favour the Judge has found will usually ask for costs. The other side can respond and the Judge will then make an order. The Judge can make one of the following orders: Where a party seeks costs on the basis that they were successful in their , the costs of the application or hearing are recovered. However, in many circumstances neither party is wholly successful, or it might be unjust to award one party costs. In these circumstances the Judge might make one of the following orders; No order as to costs thus, in the normal course of events, each party will be responsible for its own costs. OR Costs reserved Such an order can be made at any interlocutory stage in proceedings (but see Order 99, Rule 2(3) above). If the question of costs is reserved this means they will be determined usually at the trial or at a later interlocutory stage. If ultimately no specific order is made in respect of the costs reserved, they will follow the event. Students will become adept at arguing in respect of costs. Common sense is required and basic logic must be applied when arguing for or against costs. Good instructions from your solicitor can often make the difference when it comes to succeeding in a costs application or successfully resisting one. Make sure to ask your Solicitor if there are any factors (such as letters between the solicitors for both sides) which may affect costs. Other Costs Orders This usually arises where one party is to blame for an adjournment or some other such event. For example, at the outset of a trial, Counsel for one side may apply for an adjournment because a witness is unavailable. The court may grant the adjournment but award costs to the other side on a thrown away basis. This will include the © The Honor 3-2024 31 costs of Solicitors and Counsel for the day, expert witnesses, travel expenditure of witnesses etc. If the trial was scheduled to take place for 3 days the costs thrown away order may cover these costs for all 3 days. Students should note that such an award is extremely rare. An order for costs is almost invariably made on a party and party basis unless the Judge says otherwise. Party and party costs do which may have been incurred or increased through over caution, negligence or mistake, or by the payment of special fees to counsel or special charges or expenses to witnesses or other persons or by other unusual expenses. Thus, a bill from a Solicitor to a client will sometimes include a number of items in the list above which are not included in an order for costs. If a Judge awards costs on a Solicitor and Client basis (which is extremely rare) the items referred to above are included. A Judge might award such costs when there is bad faith or gross incompetence on one side and a Judge feels the party responsible should be punished. In general, when dealing with costs a good rule of thumb is; If you win a motion or case - seek your costs. If you lose, ask yourself whether there is any reason why your opponent should not be entitled to their costs. If there is a reason, apprise the Judge of it and ask for the costs to be reserved or for no order to be made, whichever is preferable. Costs are an integral part of the settlement process. When attempting to negotiate a settlement students must be acutely aware of costs as they can often be the stumbling block in such negotiations. In any court hearing costs will in all likelihood follow the event. Thus, when negotiating a settlement Counsel will know that if their claim has a 30% chance of success in Court they should not be overly zealous in pursuing their costs to date. If the claim has an 80% chance of success, then the opening position should be that the Judge is likely to award me these costs if we go to trial so I should be entitled to them in the settlement. Before entering settlement negotiations, Counsel should, where possible know his or her sides costs to date. This will include your own costs so make sure to have this figure worked out in advance. The importance of costs in the settlement process increases through the course of the pretrial process as the costs increase and the figure being claimed remains the same. Thus, insurance companies have often tried to settle claims at a very early stage to avoid unnecessary costs. The problem with this is that information from pleadings, particulars and discovery might not yet be available and thus it is more difficult to assess the likely outcome of the case. aware of the strengths and weaknesses of their case through pleadings and discovery and it is easier for negotiating parties to forecast the likely outcome of the case. Furthermore, parties tend to become anxious at the prospect of the hearing and are more amenable to settling at this stage. However, costs will be much higher now and may prevent a settlement. © The Honor 3-2024 32 Costs play an important role in longer cases as they often have the effect of forcing a settlement. High Court litigation is an expensive daily business and can have the effect of forcing parties to come to an arrangement. Furthermore, it may become obvious that the Judge is leaning in a certain direction. This may encourage one side to become more amenable in settlement negotiations. Students should be aware that the Courts are generally happy to see cases settle and Judges will usually afford parties every reasonable opportunity to settle. Civil Legal aid is available in a restricted number of circumstances in Ireland. It does not entitle the recipient to their legal costs in their entirety but rather a contribution towards same The minimum contributions are currently for legal aid. Child-care cases are free of contribution though applicants still need to come within the disposable income and capital thresholds. Applicants for asylum services pay a contribution in total. To qualify for Civil Legal Aid, applicants must satisfy a means test: annual disposable aid services. The house an applicant lives in is not included when calculating assets for the purposes of Civil Legal Aid. Individual applicants must pay the above minimum amounts which may thereafter be income. Furthermore, applicants must pass a merit test relating to the merit of the type of case and the case itself. The Civil Legal Aid Board has used the merit test to effectively limit civil legal aid to the following types of cases; judicial separation; divorce; maintenance; domestic violence; custody of and access to children; problems relating to hire-purchase agreements; landlord and tenant disputes (except where the dispute concerns ownership of land). The Civil Legal Aid Regulations 2016 (S.I. 272/2016) provide for the giving of legal advice by the Legal Aid Board to an applicant without reference to their financial resources in certain home repossession cases, provided certain criteria are met (The Abhaile Scheme). © The Honor 3-2024 33 Before issuing any proceedings, the Plaintiff is required to write to the Defendant or Defendants setting out his claim against them and, in essence, inviting them to remedy the alleged wrong done to the Plaintiff. The letter will state that unless the Defendant responds positively within the period stipulated the Plaintiff will commence proceedings. As costs are discretionary failure to write an initiating letter is likely to lead to cost consequences. Thus, if a Plaintiff commences proceedings without having written such a letter and the Defendant accepts the Plaintiffs claim soon after service of the proceedings on him, the Plaintiff is unlikely to recover his costs and may end up paying any costs incurred by the Defendant. If on the other hand a claim proceeds to trial or settles broadly in favour of the Plaintiff at a much later stage and it is clear that the omission had no real bearing on the existence of the proceedings the likelihood of an adverse costs order lessens. Nonetheless such a letter must be seen as a necessary pre-requisite to the commencement of proceedings. There may be cases where urgency does not permit such a letter to be written but such cases are exceptional. © The Honor 3-2024 34 This is usually written by a solicitor to the person/company the client claims is responsible for the wrong done Name Address Date Re: Dear the circumstances of what has happened and the result of what has happened. Request the Defendant to acknowledge liability and to compensate the Plaintiff within a specified time e.g. We call upon you to admit liability and we await your proposals regarding the compensation of our clients. If we do not have such proposals within [e.g. 28 days] we have instructions to issue proceedings [in the High Court] for e.g. negligence/breach of contract etc. Yours sincerely © The Honor 3-2024 35 The lodgment procedure (which is governed by RSC Order 22, CCR Order 15, Order 45 DCR)) provides a mechanism for Defendants who have: no defence; or a weak defence which they do not think will succeed; or to meet the claim by lodging money into court. Where there are several causes of action the lodgment notice must identify the cause of action in respect of which the payment is made and the amount in respect of it. The purpose of the procedure is to encourage parties to settle cases in order to avoid the expense and inconvenience of a full trial. If the Plaintiff accepts the lodgment then the matter is at an end. If however the Plaintiff does not accept and the matter proceeds to trial but the Plaintiff either: obtains judgment for the amount of the lodgment, or the judgment is lower than the amount of the lodgment, the Plaintiff has to pay the made. Thus Thus, Defendants can effectively reduce their overall costs burden by lodging the appropriate amount into court. A well gauged lodgment places pressure on a Plaintiff who must then evaluate the quantum of his claim and balance the risk of proceeding and beating the payment against the certainty of receiving the amount of the lodgment. There are different procedures governing lodgments depending on whether one is dealing with (i) an action for a debt or damages or (ii) an action to which s. 1(1) of the Courts Act 1988 applies. The latter applies to personal injuries injur actions, fatal injury actions pursuant to s. 48 of the Civil Liability Act 1961 and actions taken pursuant to s. 18 of the Air Navigation and Transport Act 1936 [liability of carrier in event of death of a passenger]. There are time limits within which lodgments must be made, depending on the cause of action. Order 22 of the Rules of the Superior Courts (with effect from 1 st October 2016) provides that in any action for debt or damages (other than actions referred to in Section 1(1) Courts Act 1988) or in an admiralty action the Defendant may pay into court a sum of money in satisfaction of the amount recoverable by the Plaintiff from the Defendant in the claim or (where several causes of action are joined in one action) in one or more causes of action: (1) at any time after af he has entered an Appearance and © The Honor 3-2024 36 (2) before the action has been set down for trial or (3) [See Note below in relation to Order 63C] - in the case of proceedings subject to case management under Part II of Order 63C [by virtue of complexity, number of issues or parties, volume of evidence or other special reasons], within 4 weeks of the fixing of a trial date or (4) at any later time by leave of the Court, upon notice to the Plaintiff NOTE: Order 63C is contained within the Rules on the courts.ie website. It was to have come into operation on 1st October 2016 (ref SI 255/2016) but did not do so. SI 255/2016 has NOT come into operation as yet and practitioners have been advised by notice on the courts website that a 2 month notice period will be given before it comes into operation. The Defendant is entitled to top up any sum he has already lodged once without leave and upon notice to the Plaintiff provided that such is done at least three months before the date on which the action is first listed for hearing. The date of the top up is then treated as the date of the payment in. Generally, a lodgment may be made without any admission of liability on the part of the Defendant. There are exceptions to this rule. For example, in a claim raising the question of title to land no payment can be made unless liability is admitted in the defence. Note: prior to the Defamation Act 2009 no payment could be made (see Norbrook Laboratories Ltd v. Smithkline Beecham (Ireland) Ltd 2 IR 192) unless liability was admitted in the defence. This was changed by Section 29(4) of the 2009 Act. RSC Order 22 Rule 1A (as inserted) permits a Defendant to make a lodgment in an action for damages for defamation. The sub-rule does not specify that the lodgment must be made with the delivery of the defence. For the Circuit Court see Order 15, Rule 9A. Recent case law: Browne v. van Geene IEHC 24; Emerald Isle Insurance & Investments Limited & Ors v. Dargan & Ors IEHC 214; Reaney v. Interlink Ireland Limited IESC 13. This section includes personal injury actions, fatal injuries claims under section 48 of the Civil Liability Act 1961 and section 18 of the Air Navigation and Transport Act 1936 (liability of carrier in the event of the death of a passenger). In these cases, different rules apply: a Defendant may once, without leave of the court and upon notice to the Plaintiff pay money into court, which payment may be made at the time of the delivery of the defence or within a period of four months from the date of the Notice of Trial. There are two exceptions: Where the Plaintiff has served replies to particulars or additional particulars without a request for such, or a report of a medical practitioner concerning the Plaintiff in a personal injuries action, in accordance with or for the purposes of Order 39, Rule 36, and the time for making a payment in without leave has expired, a Defendant © The Honor 3-2024 37 may make or increase an existing lodgment within 21 days of the date of same without leave of the court. The Defendant must gi give notice to the Plaintiff (SI 186/2022). Where 18 months has elapsed from the date of the notice for trial, the Defendant may make a payment into court, within 21 days of the expiration of that period, on notice to the Plaintiff but without leave of the court. If not accepted by the Plaintiff, the payment shall not take effect until the expiry of two months from the date of the payment (or the increase, as the case may be). Unlike other actions there is no automatic right to top up but a Defendant may apply app either to make a lodgment out of time or to top up the original payment and the court has power to grant such an application on such terms as it thinks fit. The court may, therefore, impose conditions. If a Plaintiff decides to accept the lodgment, a notice of acceptance of lodgment must be filed within 14 days of the date of receipt of the notice of lodgment with a copy of same acceptance is made outside this period. In relation to Plaintiffs under a disability (which includes infants) or of unsound mind, a lodgment or tender cannot be accepted without leave of the court. This is also the procedure in respect of lodgments in fatal injury cases. Such an application should be relevant information, including up-to-date medical reports and vouchers for special damages. As indicated above, a Plaintiff may accept any payment in within 14 days of notice or at such other time as the parties may agree. If a Plaintiff does not accept the payment in and fails to obtain more than the lodgment then he will be entitled to his costs up to the date of the payment in and the Defendant will be entitled to his costs from that date unless the judge at the trial shall otherwise direct for special cause shown and mentioned in the Order. Order 22, Rule 6: If the plaintiff does not accept, in satisfaction of the claim or cause of action in respect of which the payment into Court has been made, the sum so paid in but proceeds with the action in respect of such claim or cause of action, or any part thereof, and is not awarded more than the amount paid into Court, then, unless the Judge at the trial shall for special cause shown and mentioned in the order otherwise direct, the following provisions shall apply: (1) If the amount paid into Court exceeds the amount awarded to the plaintiff, the excess shall be repaid to the defendant and the balance shall be retained in Court. (2) The plaintiff shall be entitled to the costs of the action up to the time when such payment into Court was made and of the issues or issue, if any, upon which he shall have succeeded. © The Honor 3-2024 38 (3) The defendant shall be entitled to the costs of the action from the time such payment into Court was made other than such issues or issue as aforesaid. (4) The costs mentioned at paragraphs (2) and (3) hereof shall be set off against each other; and if the balance shall be in favour of the defendant, the amount thereof shall be satisfied pro tanto out of the money remaining in Court and, in so far as the money remaining in Court is not sufficient to satisfy the same, shall be recoverable from the plaintiff; or if the balance shall be in favour of the plaintiff, the amount thereof shall be recoverable from the defendant. (5) Any money remaining in Court after satisfying the balance (if any) due to the defendant for costs as aforesaid shall be paid out to the plaintiff. (6) If in any case the Court is of opinion that for the purposes of the preceding paragraphs of this rule it is not necessary to retain in Court the whole of the balance referred to in paragraph (1) it may order the payment out to the plaintiff of so much thereof as it deems proper. (7) The amount awarded to the plaintiff shall be deemed to be satisfied by the application in manner aforesaid of the moneys paid into Court. Order 22 RSC as amended provides that except in an action to which a defence of tender before action is pleaded, no communication shall be made either of the fact that money has been paid into Court or of the amount so paid into Court: (a) to the Judge at the trial of any action until all questions of liability and amount of debt or damages have been decided, or b) to the jury where an action is tried by a Judge with a jury. While the fact that money has been paid into Court shall not be stated in the defence and the trial judge is thus not aware of same Order 22 Rule 7 RSC provides that a Judge may, before or at the trial of an action, enquire for good or sufficient reason as to whether, and if so in what amount, a payment has been made into Court. (There is no such provision in Order 15 of the Circuit Court Rules). Lodgments are governed by Order 15 CCR. The rules differ very slightly between those actions commenced and maintained in the Dublin Circuit and those on other Circuits. In the case of Dublin Circuit, the following rules apply: A Defendant may at any time after entering an Appearance, and prior to either: (i) any date not later than the date of notice of trial, or © The Honor 3-2024 39 (ii) at least eight weeks before the hearing date mentioned in the notice of trial as may be agreed between the parties, th or without admission of liability. The payment in may be increased once without leave on notice to the Plaintiff. Both the payment and the notice must be made: (i) at a date not later than the date of Notice of Trial; or (ii) at least eight weeks (or shorter period as agreed between the parties) before the date of hearing mentioned in the Notice of Trial. On Circuits outside Dublin the time limits for payments and top up are at least eight weeks before the day upon which the case is first due to be heard or such shorter period prior to the date of hearing as may be agreed between the parties. In both cases the fact that such a lodgment has been made must not appear in the Defence. The rules prescribe a form of notice (Form 6B on the Schedule of Forms) which is filed with the County Registrar. The trial Judge only becomes aware of the lodgment once all the issues save for costs have been disposed of by him. The Plaintiff may serve notice upon the Defendant within 10 days after the date of the lodgmentt that he accepts the lodgment in which case the notice operates as a stay of all lodgment was made, save with regard to costs. Where the Plaintiff serves notice of acceptance, he is entitled to tax his costs after the expiration of four days of the service of the notice unless the Judge orders otherwise. If, after taxation, the costs remain unpaid he is entitled to enter Judgment for his costs within seven days after taxation. Where a Plaintiff does not accept the lodgment and fails to beat the payment in, he is liable for all costs incurred after the date of the lodgment. Where the defence of tender before action is raised (i.e. the Defendant has prior to commencement of the action tendered money in satisfaction of the claim) that money must, in both the High Court and the Circuit Court, be brought into court in order for the defence to be effective. Order 22, Rule 14 provide provides for the making of an offer of tender of payment in lieu of lodgment in court. Thus, where a qualified party is entitled to make or increase a lodgment on his own behalf or on behalf of another party, he may in lieu of so doing, make an offer of tender of payment to the other party, which offer shall be deemed to be and to have the © The Honor 3-2024 40 same effect as a lodgment. The provisions of Order 22 apply mutatis mutandis to such tender offer of payment as regards time for making and accepting same, and nondisclosure of the fact or amount as they apply to a lodgment. Such an offer shall state whether liability is accepted or denied. Where such an offer is accepted, the party having notice thereof must pay the sum offered within four weeks of the date of receipt of notice of acceptance. Where it is not paid within this time, an entitlement to interest arises on the sum due. A qualified party is defined as:(a) (b) (c) (d) (e) (f) (g) (h) A Government Minister; The Attorney General; The Government; The State; Any party in respect of whom the State is providing an indemnity; An indemnifier of any party and authorised to carry on business in the State as an insurance undertaking pursuant to law for the time being in force; The Motor Insurers Bureau The Visiting Motor Insurers Bureau. Order 15, Rule 21(2) Circuit Court Rules (inserted by S.I. 510/2001) makes similar provision in respect of the Circuit Court. District Court see Order 45(9). There are cases where the lodgment procedure is not suitable, or which will not be available to dispose of all the issues. These are cases where the Plaintiff seeks relief other than the payment of money by way of debt or damages. In such cases it is possible to achieve a the case in which its use was first suggested (Calderbank v. Calderbank Fam 93). In that case Lord Scarman suggested that a letter could be written on a without prejudice basis but with a reservation that the writer thereof might refer to it on the issue of costs. Thus, ng forward proposals for correspondence is inadmissible with regard to the issue of costs, a caveat is added which , the letter should be (see example overleaf). © The Honor 3-2024