About this case:

• Citation:
  [2023] IEHC 238
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Ms Justice Eileen Roberts

Delivering judgment in the case, Ms Justice Eileen Roberts refused the Council’s application for summary judgment against the defendant regarding its costs. The court held there had been no decision on the merits of the case and the court was being asked to assume the result of a “hypothetical trial”.

Further, the ordinary rules relating to discontinuance and costs applied in the case. The Council had progressed the substantive proceedings and Mr McBrearty had incurred costs. Accordingly, the Council was required to pay his legal expenses.

Background

Mr McBrearty was an elected member of Donegal County Council. During a meeting in January 2022, the Council passed a resolution to suspend Mr McBrearty for a period of one month arising out of alleged disruptive conduct.

Mr McBrearty did not comply with the suspension and attended the next meeting of the Council. As such, the Council issued a plenary summons and a motion seeking an interlocutory injunction restraining Mr McBrearty from attending meetings for the duration of his suspension.

Following a contested hearing in which Mr McBrearty represented himself, the High Court granted the injunction. At that time, it was noted that the grant of the injunction would likely dispense with the proceedings entirely. The Council also obtained an order for its costs of the motion against Mr McBrearty.

In July 2022, the Council’s solicitor wrote to Mr McBrearty and indicated that, since his suspension had lapsed, the proceedings were moot. It was proposed to strike out the proceedings with no further order, save as to keep the costs order of the injunction motion in place.

Mr McBrearty did not respond to the letter and, in August 2022, the Council delivered a statement of claim. In November 2022, the Council requested a defence to be delivered by Mr McBrearty.

No defence was delivered and, in December 2022, the Council issued a motion seeking summary judgment of its costs against Mr McBrearty. Alternatively, the Council sought to discontinue the proceedings with an award of costs in its favour.

A defence and counterclaim was delivered in March 2023 following the instruction of solicitor and counsel. He opposed the application for summary judgment and argued that he was entitled to his costs where the Council sought to discontinue the proceedings.

The Council submitted that Mr McBrearty’s defence was a traverse and did not identify a substantive defence to the proceedings. It was therefore stated that the defendant did not have an arguable defence to the claim and the Council was entitled to its costs by way of summary judgment. In this regard, the Council relied on the recent decision of Inland Fisheries Ireland v Ó Baoill [2022] IECA 266 (see also Abbey International Finance Limited v Point Ireland Helicopters Limited [2012] IEHC 374).

High Court

Ms Justice Roberts began by addressing the Council’s claim for summary judgment regarding its costs. It was held that in appropriate cases, the court has jurisdiction to proceed by way of summary judgment in plenary proceedings (Shawl Property Investments Limited v A&B [2019] IEHC 649). However, a conservative approach needed to be adopted in such cases (see Inland Fisheries).

The court held that the Inland Fisheries case did not provide authority that summary judgment should be granted in the present case. The Inland Fisheries case involved extensive proceedings with pleadings being closed and where over a decade had elapsed. It was a case where summary judgment was held to be “overwhelmingly warranted” having regard to the factual matrix.

In the present case, the plaintiff acknowledged that the proceedings were moot and sought its costs on the premise that, if the case ran, the defendant would be unsuccessful. However, the court held that no determination of the substantive merits of the case had been made. Accordingly, the court was not satisfied to make an order for summary judgment of the costs of the proceedings.

It was not appropriate for a court to assume a “hypothetical trial” for determining how the costs should be borne by the parties, the court said.

Turning to the issue of discontinuance, the court recited Order 26 Rule 1 which provided that a plaintiff may discontinue proceedings at any time before the delivery of a defence on condition that the plaintiff pays for the costs occasioned by the withdrawal.

The court distinguished the case of Flynn v Breccia [2017] IECA 163, where the plaintiffs discontinued proceedings after 12 days of hearing against a defendant but were awarded their costs. It was held that the plaintiffs had received a letter during the hearing which addressed their concerns and made it no longer desirable to continue against the defendant. There was no suggestion that the plaintiffs could or should have withdrawn the case at an earlier point.

In the present case, it was accepted by the Council that the proceedings were moot by July 2022. As such, it was held that the applicable authority was Shell E&P Ireland Ltd v McGrath (No. 3) [2007] IEHC 144. In that case, it was noted that the discontinuance of proceedings meant that the plaintiff was asking the court not to engage in the merits of the case.

While Mr McBrearty would have been awarded the costs of the proceedings if they had discontinued the case after February 2022, the court held that his costs would have been minimal at that point due to being self-represented. Further, the Council had obtained an order for costs in the interlocutory application.

The court held that the Council did not require Mr McBrearty’s consent to discontinue the proceedings and rejected the argument that Mr McBrearty’s non-engagement meant that they had to prosecute the claim.

It was open to the Council to allow the matter to fall into abeyance by taking no further steps or to serve a notice of discontinuance. Instead, the Council chose to “drive on the proceedings” causing further costs to be incurred.

There was no legal requirement for Mr McBrearty to respond to the offer in July 2022 to discontinue the case. It was the Council who took proactive steps in the proceedings by delivering a statement of claim despite being under no pressure to do so.

Conclusion

The court decided that it would not depart from the ordinary rule that the party seeking to discontinue their proceedings must pay the other party’s costs to that point. Mr McBrearty agreed that the counterclaim could be struck out if the proceedings were discontinued.

Accordingly, the court refused summary judgment of the plaintiff’s costs and granted leave to discontinue the proceedings on the condition that the Council paid Mr McBrearty’s costs to the date of discontinuance.

Donegal County Council v. McBrearty [2023] IEHC 238