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High Court of Ireland Decisions |
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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> McKillen -v- Irish Bank Resolution Corporation Ltd & Ors [2014] IEHC 190 (20 March 2014) URL: http://www.bailii.org/ie/cases/IEHC/2014/H190.html Cite as: [2014] IEHC 190 |
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Judgment Title: McKillen -v- Irish Bank Resolution Corporation Limited & Ors Neutral Citation: [2014] IEHC 190 High Court Record Number: 2013 9924 P Date of Delivery: 20/03/2014 Court: High Court Composition of Court: Judgment by: Gilligan J. Status of Judgment: Approved |
Neutral Citation: [2014] IEHC 190 THE HIGH COURT [2013 No. 9924 P] BETWEEN PATRICK MCKILLEN PLAINTIFF AND
IRISH BANK RESOLUTION CORPORATION LIMITED (IN LIQUIDATION), KIERAN WALLACE, EAMONN RICHARDSON, B OVERSEAS LIMITED, MISLAND (CYPRUS) INVESTMENTS LIMITED, DAVID BARCLAY, FREDERICK BARCLAY, MAYBOURNE FINANCE LIMITED AND ELLERMAN INVESTMENTS LIMITED DEFENDANTS JUDGMENT of Mr. Justice Paul Gilligan delivered on the 20th day of March, 2014 1. It is quite clear to this Court that the main protagonists in these proceedings are the plaintiff and the Barclay associated defendants, the issue being the control of a substantial sum of money as loaned originally by Anglo Irish Bank to the plaintiff, and which loan the special liquidators proposed to sell to the highest bidder. The background to the proceedings has been in the public domain for some time and does not need to be repeated here. The reality is that no independent wrong was alleged against the special liquidators and at a very early stage when the proceedings came before this Court, it was clearly indicated that if the plaintiff was successful in purchasing the loans, these proceedings would become moot. In the particular circumstances, the plaintiff was successful in purchasing his own loans and thus, the issue in the proceedings was resolved by the fact of the decision of the special liquidators to sell to the plaintiff his own loans. In these circumstances there is no event for the costs to follow and in this regard Mr. Gallagher S.C. on behalf of the Barclay associated defendants, has consented to an order that as between the Barclay associated defendants and the plaintiff each side shall bear their own costs of the proceedings to date. 2. Mr. Ferriter S.C. on behalf of the special liquidators, submits to the Court that they are, in the particular circumstances, not to be left out of pocket on behalf of the taxpayer and that there has been an event in that the plaintiff and the Barclay associated defendants have resolved their differences and the plaintiff is not now proceeding against the special liquidators. In particular, Mr. Ferriter refers to the fact of the discovery application that was made on behalf of the plaintiff against the special liquidators and the costs that were involved on the part of the special liquidators in preparing the discovery and deposing to the relevant documentation in an extensive affidavit. The plaintiff made several applications for discovery against third parties and in each case he was obliged to meet, in accordance with the Rules of the Superior Courts, the costs of those third parties in having to prepare and depose an affidavit. He poses the question to the Court as to why the special liquidators should be left in any different position to those parties in the particular circumstances and submits, in effect, that if the Court was disposed not to make an order for full costs in favour of the special liquidators, they should at least be entitled to the costs of the discovery application. In the particular circumstances the costs of discovery of the special liquidators were reserved to the trial judge. 3. The issue as regards costs and proceedings becoming moot is extensively dealt with by Clarke J. in Cunningham v. The President of the Circuit Court and the Director of Public Prosecutions [2012] IESC 39 in his judgment as delivered in the Supreme Court on 21st June, 2012. 4. He states at para. 4.6 of the judgment:-
4.7 In that context counsel for Ms. Cunningham places reliance on my decision in the High Court case of Telefonica 02 Ireland Ltd v. Commission for Communications Regulations [2011] IEHC 380. Section 6 of that judgment concerns the proper principles to be applied by the courts in relation to the costs of a moot issue. I see no reason to differ from the views which I expressed on that occasion. In summary and for the reasons set out in Telefonica, a court without being overly prescriptive as to the application of the rule should in the absence of significant countervailing factors ordinarily lean in favour of making no order as to costs in cases which have become moot as a result of a factor or occurrence outside the control of the parties, but should lean in favour of awarding costs against a party through whose unilateral action the proceedings have become moot. At para. 6.4 of my judgment in Telefonica, I noted that a similar approach had been adopted by this Court in respect of the costs of a challenge to certain intended procedures of the Commission to Inquire into Child Abuse where the issues in the case had become moot by reason of a change of policy of that Commission subsequent to the decision of the High Court in Murray & Anor v. Commission to Inquire into Child Abuse [2004] 21.R. 222, and while an appeal was pending to this Court. 4.8 It must, of course, be acknowledged that some cases which have become moot may not fit neatly into the category of proceedings which have become moot due to entirely external events on the one hand or due to the unilateral action of one of the parties on the other hand..." 6. However, it is quite clear that the Rules of the Superior Courts provide that a non-party to proceedings shall be entitled to the costs of making discovery where such an order is made by the Court. 7. Accordingly, I am of the view that it is not appropriate to make a differentiation as between the costs as incurred by the special liquidators and the costs of discovery as reserved. 8. If the plaintiff was not continuing the proceedings as against the special liquidators for a reason other than that they had become moot, then quite clearly the authorities are of the view that a plaintiff who elects to begin proceedings and then abandons them for whatever reason must pay the defendants costs. As Keane C.J. stated in Callagy v. Minister for Education (Unreported, the Supreme Court, 23rd May, 2003):-
10. In the particular circumstances, without being overly prescriptive, and in the absence of significant countervailing factors, I see no reason to depart from the ordinary rule that the court should lean in favour of making no order as to costs in cases which have become moot and accordingly, the order of this Court will be that by consent there will be no order as to costs as between the plaintiff and the Barclay associated defendants and no order as to costs as between the plaintiff and the first three named defendants.
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