High Court awards plaintiffs costs for interlocutory application despite defendant's appeal on substantive right to crossing access.

Neutral Citation Number: [2009] IEHC 625

THE HIGH COURT

2007 5591 P

BETWEEN

GREG KAVANAGH, FRED DALY AND THOMAS GODKIN

PLAINTIFFS

AND

CÓRAS IOMPAIR ÉIREANN

DEFENDANT

Judgment of Miss Justice Laffoy delivered on the 10th day of December, 2009.

The issue

In my judgment delivered on 9th October, 2009 I dealt with the substantive issue in these proceedings. I held that the plaintiffs are

entitled to an accommodation way over the level crossing known as “Flights Level Crossing” (the Level Crossing) to access their lands

now registered on Folio 30552F of the Register of Freeholders County Wicklow situated on the eastern side of the Dublin to Arklow

railway for the purpose of the use of the lands for agricultural purposes, whether tillage or grazing. Further, I held that the plaintiffs’

right extends to access over the Level Crossing on foot, with vehicles and farm machinery and equipment, including machinery

necessary to drain the land in connection with its use for agricultural purposes.

In my judgment, I set out what the parties had agreed was to be the Court’s function. As I stated, there was consensus between the

parties that the Court should address the declaratory relief being sought by the plaintiffs and determine whether the plaintiffs have a

right to use the Level Crossing and, if so, the nature of the right and the restrictions on its use. I recorded that both sides had

agreed that, if the existence of a right in favour of the plaintiffs were established, the parties would enter into discussions to deal

with safety issues and such like in relation to future use by the plaintiffs of the Level Crossing. Although the effect of the judgment

was to hold that the plaintiffs are entitled to use the Level Crossing, no discussions have been entered into between the parties in

relation to the use of the Level Crossing because the defendant has decided to appeal the Court’s decision to the Supreme Court, it

always having been the defendant’s position that the plaintiffs had, and have, no existing right over the Level Crossing.

It is important to emphasise that the reason the Court postponed granting permanent injunctive relief was because that was what

the parties required the Court to do. It follows from the finding that the plaintiffs have an entitlement to use the Level Crossing that

any interference by the defendant with the right as so found is amenable to a perpetual injunction, subject however to compliance

with the Railway Safety Act 2005 and the Safety and Welfare at Work (Construction) Regulations 2006 and any requirements of the

Railway Safety Commission. Following judgment on the substantive issue, the Court awarded the plaintiffs the costs of the

proceedings against the defendant subject, at the request of the defendant, to the exclusion of costs of an application for an

interlocutory injunction brought by the plaintiffs simultaneously with the initiation of the proceedings by plenary summons on 25th

July, 2007. The issue with which this judgment deals is an application by the defendant that the defendant should be awarded the

costs of the interlocutory application against the plaintiffs or, alternatively, that there be no order in relation to the costs of that

application.

The course of the interlocutory application

In the interlocutory application, the plaintiffs sought various orders which were designed to allow them have the use of the Level

Crossing pending the determination of the proceedings. The primary reliefs they sought were orders requiring the defendant forthwith

to –

(1) remove barriers/fencing preventing the plaintiffs using the Level Crossing, and

(2) provide access through the barriers/fencing which prevented the plaintiffs using the Level Crossing, and

(3) requiring the defendant to restore the plaintiffs’ use of the Level Crossing.

Each of those reliefs was designed to restrain the defendant from preventing the plaintiffs’ use of the Level Crossing but in each case

it was expressly acknowledged that any order granted should be “subject only to all necessary safety precautions”.

A large number of affidavits were filed in support of, and in response to, the application for interlocutory relief. The application

appeared from time to time in the Chancery 1 motion list. There is some contention as to what the respective positions of the parties

were in relation to the interlocutory application being determined by the Court. However, as I understand the position, by 26th

November, 2007 it was apparent that the hearing of the interlocutory application would take more than a day and would have to go

into the Chancery list to fix dates to get a hearing during the following term. Counsel for the plaintiffs suggested that, in the

circumstances, the preferable course might be to have an early hearing of the substantive matter, with the interlocutory application

adjourned to the trial. The Court (Clarke J.) facilitated the parties by case managing the procedural matters. Eventually, when the

substantive matter was ready for hearing, on 3rd March, 2008 the substantive action and the interlocutory injunction were both

transferred to the next list to fix dates. The practical consequence of that was that the costs of the interlocutory application could

not be dealt with and those costs were left to the trial Judge.

The outcome of that practical solution was that the interlocutory application was never determined. The case made on behalf of the

defendant on this application is that the defendant would have successfully defended the interlocutory application and would have

been entitled to the costs thereof and, by reason of the fact that it was not determined, the defendant has been unjustly deprived of

those costs. On the other hand, looking at the matter from the plaintiffs’ perspective, the fact that it was not determined means that

they were deprived of right of access over the Level Crossing while the proceedings were pending, even though the Court ultimately

held that they were entitled to such a right, because the defendant persistently denied that they had any such right. It was

contended on the plaintiffs’ behalf that they are entitled to the costs of the interlocutory application against the defendant.

The law

Since these proceedings and the application for the interlocutory application were initiated, Order 99 of the Rules of the Superior

Courts (the Rules) has been amended by the insertion in rule 1 of Order 99 of sub-rule (4A), which provides:

“The High Court 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.”

That amendment came into operation on 21st February, 2008 (S.I. No. 12 of 2008). It is an exception to the general rule provided for

in sub-rule (4) of rule 1, which provides that the costs of every issue of fact or law raised upon a claim or counter-claim shall, unless

otherwise ordered, follow the event.

There is a useful outline of the historical position adopted by the courts in dealing with the costs of applications for interlocutory

injunctions in Kirwan on Injunctions: Law and Practice (Thomson Round Hall 2008) at p. 229 et seq. The practice (in the sense of

what happened in reality, as opposed to what was decreed by a practice direction) before the amendment to the Rules in 2008 was

that generally the costs of an application for an interlocutory injunction were reserved for the trial Judge to determine at the

conclusion of the substantive hearing, although the court’s discretion to depart from that practice was exercised on occasion when

justified. The rationale for reserving costs was explained by Keane J. in Dubcap Ltd. v. Microchip Ltd. (Unreported, the Supreme

Court, 9th December, 1997) as follows:

“It is right to say, of course, that while there is no rule of court or even a practice to that effect, the normal procedure

on the hearing of an interlocutory application is to reserve the costs to the trial Judge. The reason for that is obvious:

there may and very frequently will be matters which can only be resolved by the Court of Trial on oral evidence at a

plenary hearing of the action and indeed matters may come to light by way of discovery or by way of new evidence not

available to the parties at the time of the hearing of an interlocutory application which bring about a result which seemed

unlikely or improbable at the time of the hearing of the interlocutory application, so for that reason it is quite normal on

the hearing of the interlocutory applications to reserve the costs.”

Counsel for the parties referred the Court to two decisions of the Supreme Court in which there was a departure from that approach.

The first was Davis v. Walshe [2003] 2 I.R. 152, in which the Supreme Court affirmed an order of the High Court (Murphy J.) in

awarding costs of an unsuccessful application for an interlocutory injunction to the defendant against the plaintiff. Having quoted the

passage from the judgment of Keane J. in the Dubcap case, which I have just quoted, McGuinness J., with whom the other Judges

concurred, stated as follows (at p. 154):

“Of course this court accepts that it is normal in a great many cases for the costs of an interlocutory application to be

reserved to the trial, but in this case what was dealt with at the interlocutory application was a discrete issue, dealt with

in a situation where the plaintiff did not accept that his employment had been terminated at all and in a situation where

he was not seeking damages arising from unfair dismissal or wrongful dismissal. It seems that this whole aspect of the

matter will not be fully pursued at trial and while arguments may, as explained by counsel for the plaintiff, be made at trial

in regard to the legal position on termination of employment, nevertheless the actual issue that was before Murphy J. will

not be argued further at the trial of the action.”

The second case, which was relied on by counsel for the plaintiffs, was the decision of the Supreme Court in Grimes v. Punchestown

Developments Company Ltd. [2002] 4 I.R. 515, which was also a case in which the Supreme Court upheld the decision of the High

Court (Herbert J.) in awarding costs of an application for an injunction against the unsuccessful applicant. In that case, the

application was brought under s. 27 of the Local Government (Planning and Development) Act 1976 and the substantive issues had

been determined definitively, which distinguishes it from an ordinary application for an interlocutory injunction. The point which was

emphasised by counsel for the plaintiffs was the passage in the judgment of Denham J., with whom the other Judges concurred, in

which she stated (at p. 522) that the normal rule is that the costs follow the event but that there are circumstances when a Court

on the facts of a case determines that the normal rule will not apply, and that a successful applicant may not succeed in obtaining an

order for costs if the facts indicate features which are unsatisfactory as to the way in which he or she acted, and continued:

“The burden is on the party making an application to show that the order for costs should not follow the general rule.”

Counsel for the plaintiffs submitted that the defendant has not discharged that burden.

Application of the law to the facts

The basic premise of the defendant’s argument was that, while there has been no event on the interlocutory application which costs

might follow, which is the case, that does not mean that the Court should adopt the simple expedient that costs should follow the

event on the substantive proceedings. The Court was, in essence, invited to form a view as to whether the interlocutory application

would have been successful and it was urged that it would not have been for a number of reasons: the plaintiffs were endeavouring

to alter the status quo rather than maintain it; the balance of convenience favoured refusal; and, in any event, damages would have

been an adequate remedy for the plaintiffs.

Counsel sought to support the defendant’s position on a number of factual grounds. First, the paramount issue of safety on the

railway line was emphasised and it was pointed out that, prior to the initiation of the proceedings, by letter dated 2nd July, 2007 to

the plaintiffs’ solicitors, the defendant’s solicitor had sought “a detailed method statement which specifies the exact machinery which

your client proposes to use, the exact nature and duration of the proposed work, the times and numbers of proposed machinery

movements over the railway line”. The plaintiffs never furnished a method statement as requested. In their response of 11th July,

2007, in which they threatened an application for an injunction, the plaintiffs’ solicitors stated that the plaintiffs required to carry out

remedial works on their lands and intended to bring a JCB on to the lands over the Level Crossing. Secondly, the defendant was

concerned that the plaintiffs’ real intentions in relation to the use of their lands was not to use them for agricultural purposes but to

develop them as a waste water treatment works for Arklow, which would have raised safety issues. Thirdly, the defendant had

concerns arising out of the behaviour of the plaintiffs earlier in 2007 at which time they attempted to access their lands with

machinery via an underbridge on the railway line. That behaviour had been the subject of injunction proceedings in this Court entitled

Iarnród Éireann – Irish Rail v. Fred Daly (Record No. 2007 No. 2128P), which were the subject of a consent order made on 21st

March, 2007 in which the use of the underbridge with vehicles was restrained pending the trial of the action. Ultimately, those

proceedings were settled before these proceedings and this application were initiated. A sum of €75,000 was paid to Iarnród Éireann

on foot of the settlement in June 2007.

On this application it was not suggested that the Court should read all of the affidavits and exhibits filed on the plaintiffs’

interlocutory application. The Court was referred to the grounding affidavit sworn by the first plaintiff and the replying affidavit sworn

on 30th July, 2007 by Colin Hedderly, Assistant Divisional Engineer of Iarnród Éireann. In the grounding affidavit of the first plaintiff, he

referred to the fact that the plaintiff’s lands were primarily in agricultural use and set out the fact that the plaintiffs wished to carry

out drainage works with a view to letting the lands for agricultural purposes. However, he also referred to the fact that the plaintiffs

had made an application for planning permission for the development of the lands as a waste water treatment works in February 2007,

which application had been refused by the planning authority, but that the plaintiffs’ architects were in the process of filing a new

planning application, which envisaged the construction of an overbridge across the railway line at the expense of the plaintiffs. The

first plaintiff also disclosed the existence of the proceedings in relation to the underbridge, exhibited the consent order of the 21st

March, 2007 and averred that proceedings had subsequently been settled as between the parties.

On the basis of these two affidavits, which I have read in connection with this application, it is not possible to conclude that the

plaintiffs’ application for an interlocutory injunction was precipitate, nor is it possible to conclude that the Court hearing the

interlocutory application, if it had proceeded, would have refused the application on the grounds asserted on behalf of the defendant.

The question for a Court in applying sub-rule (4A) is whether it is possible to justly make an order for costs at an interlocutory stage

or not. While it may be regarded as unwise to generalise about these matters, it would seem to me that one is more likely to be in a

position to determine that it would be just to award the costs against the unsuccessful plaintiff where the application for an

injunction is refused, than to adjudicate on liability for costs in other circumstances. Where an injunction is granted, for example, I

think the rationale as outlined by Keane J. in the Dubcap case in many, if not most, cases would militate against making an order for

costs in favour of the successful plaintiff and the just course would be to reserve the costs to the trial Judge. On this application, the

Court is faced with an almost impossible task in being asked to adjudicate on liability for costs of the interlocutory application as a

“standalone” component of the proceedings, because there was no determination of the plaintiffs’ entitlement to the relief claimed

due to a sensible and pragmatic decision to subsume the interlocutory application into the trial with a view to avoiding costs.

Counsel for the defendant submitted that the dispute between the parties should have been litigated from the start on the basis that

the matter would go to trial as expeditiously as possible. The plaintiffs should not have burdened the defendant with the costs of

defending the interlocutory application or, worse still, of having to not only bear its own costs of defending, but also the costs of the

plaintiffs in bringing it, it was submitted. However, the fundamental problem with the defendant’s argument is that the defendant from

the start and throughout the proceedings denied the existence of any right to use the Level Crossing in the plaintiffs. The Court has

found that the defendant was not entitled to adopt that position. As a result, on the basis of that finding, the plaintiffs have been

wrongfully denied the use of the Level Crossing by the defendant since before these proceedings commenced. The “event” which has

ensued from the core issue (whether the plaintiffs have an entitlement to use the Level Crossing) in these proceedings, including in

the interlocutory application, is that it has been held that the plaintiffs are entitled to use the Level Crossing. Therefore, in order to

justly attribute liability for the costs of the interlocutory injunction, in my view, regard must be had to the outcome of the trial.

Accordingly, as a matter of justice, the plaintiffs must be entitled to the costs of taking the interlocutory application as far as it was

taken.

Order

There will be an order awarding the costs of the interlocutory application, when taxed in default of agreement, to the plaintiffs.