Court of Appeal rules plaintiff's High Court costs are limited to lesser of damages or Circuit Court scale under s.17(3) Courts Act 1981.

THE COURT OF APPEAL

Neutral Citation Number: [2016] IECA 372

Appeal Nos. 2014/868

Irvine J.

Hogan J.

Hedigan J.

BETWEEN/

DARIUS SAVICKIS

PLAINTIFF/APPELLANT

- AND -

GOVERNOR OF CASTLEREA PRISON, MINISTER FOR JUSTICE AND EQUALITY, THE IRISH PRISON SERVICE, IRELAND AND THE

ATTORNEY GENERAL (No.2)

DEFENDANTS/RESPONDENTS

JUDGMENT of Ms. Justice Irvine delivered on the 7th day of December 2016

1. In these proceedings, which were heard before a jury in the High Court, the plaintiff (“Mr. Savickis”) was awarded a sum of €225

for damages for negligence and assault arising out of events which had ocurred on 29th September 2009 when he was a prisoner in

Castlerea Prison. On appeal before this Court (see [2016] IECA 310) the aforementioned damages were set aside in favour of the

following:-

(a) An award of €10,000 damages in respect of assault,

(b) An award of €5,000 by way of exemplary damages in respect of the claim for assault (and consequential breaches of

his constitutional rights), and

(c) €2,225 damages for injures sustained by Mr. Savickis as a result of the negligent use by the respondents of certain

restraint techniques.

2. It is conceded by the respondents that Mr. Savickis, having succeeded in his appeal, is entitled to the costs of the hearing before

this Court. That being so, the only issue that remains to be decided concerns the costs that ought properly and lawfully be awarded

to Mr. Savickis in respect of the High Court hearing in light of the outcome of the appeal. For reasons which I will now explain, I am

satisfied that those costs are governed by the provisions of s. 17(3) of the Courts Act 1981, (“the 1981 Act”) (as substituted by s.

14 of the Courts Act 1991) with the effect that his costs will be the lesser of the two following amounts, namely the amount of the

damages awarded to him by this court or the amount of costs which he would have been entitled to recover if he had brought his

claim in the Circuit Court.

The submissions

3. On Mr. Savickis’s behalf, Ms. Phelan S.C. submits that the costs of the High Court hearing fall to be determined pursuant to the

provisions of s. 94 of the Courts of Justice Act 1924, that being the provision which, whilst later amended, provides that nothing

contained in that Act should prejudice a plaintiff’s right to a jury trial in certain civil cases, including actions for intentional trespass to

the person. That being so, while acknowleding that under the section the court retains a discretion, she submits that “costs follow

the event”. Counsel submits that s. 17(3) of the 1981 Act does not apply to the present case. The Oireachtas could not, she insists,

have intended that a litigant who successfully exercised their statutory right to a jury trial in the lowest court available to them for

such purpose could find themselves penalised in the manner as would occur in the event that the damages awarded to them fell

within the parameters advised in s. 17(3) of the 1981 Act. The application of that section would have the effect of precluding a

plaintiff such as Mr. Savickis, the right to vindicate his personal rights (and in particular his statutory right to a trial in accordance

with law before a jury in an assault action) as required by Art. 40.3 of the Constitution.

4. Ms. Phelan submits that, properly interpreted, s. 17(3) does not apply to proceedings for assault heard by a jury in the High Court

insofar as the section refers to the possibility that the proceedings therein mentioned might have been maintained in the Circuit

Court, and Mr. Savickis’s statutory right to claim damages for assault before a jury could not have been determined in that manner in

the lower court. Alternatively, if s.17(3) applies, counsel submits that the section should be interpreted in a manner consistent with

the court retaining a discretion concerning the costs to be awarded where the plaintiff’s action was brought in the lowest court in

which they could have claimed the relief sought while exercising their right to have such a claim determined by a jury trial.

Counsel for the respondent

5. Mr. Healy S.C. on behalf of the respondents submits that the costs of the High Court hearing must be determined by reference to

s. 17 of the 1981 Act. The section is mandatory once it is clear that the relief granted in the High Court would have been available

had the proceeedings been commenced in the Circuit Court. Section 17 does not distinguish between proceedings heard before a jury

and those heard by a judge sitting alone. Accordingly the section applies regardless of the plaintiff’s election to have his claim tried by

a jury.

6. Mr. Healy submits that the jurisdiction of the court concerning the costs of proceedings protected by s. 94 of the Courts of Justice

Act 1924 is curtailed by the provisions of s. 17 of the 1981 Act. He disagrees with Ms. Phelan’s submission that the court retains a

discretion where the proceedings are brought in pursuance of a statutory right to a jury trial in an action for assault. The only

discretion retained by the court concerns proceedings wherein the relief granted is an award of damages that falls within the

parameters of €31,743 and €38,092, i.e., very close to the lower end of then jurisdiction of the High Court. Section 17(3) could not

be interpreted to exclude proceedings heard by a jury where the relief granted was an award of the damages which fell within the

specified parameters and which relief could have been granted in the circuit court. To interpret the section as suggested by Ms.

Phelan would be to re-write the section.

7. Mr. Healy submits that while Mr. Savickis enjoyed the right to have his claim for damages for assault heard by a jury in the High

Court, he could have sought the same relief in the circuit court, where he could have vindicated his personal rights protected by Art.

40.3 of the Constitution. However, instead he chose to pursue his claim in the High Court and in doing so exposed himself to the

consequences s.17 in terms of his costs should the damages awarded to him not exceed the jurisdiction of the circuit court.

8. Mr. Healy submits that the 1981 Act provides a scheme designed to ensure that the costs that may be recovered by a successful

party to litigation should be proportionate to the damages which they are awarded. It in the interests of the public that legal costs be

both proportinate and predictable. The provisions of s. 17 are both transparent and fair. To interpret the section as contended for on

behalf of Mr. Savickis would be to set at nought the legislative scheme.

Relevant statutory provisions.

9. The relevant statutory provisions are as follows: –

S. 94 Courts of Justice Act 1924

“Nothing contained in this Act shall take away or prejudice the right of any party to any action in the High Court or the

Circuit Court (not being an action for liquidated sum, or an action for the enforcement, or for damages for the breach of

contract) to have questions of fact, tried by a jury in such cases as he might heretofore of right have so required in the

Supreme Court of Judicature in Ireland, and with like directions as to law and evidence, but no party to an action in the

High Court or the Circuit Court for a liquidated sum, or an action for the enforcement or for damages for breach of

contract or in an action for the recovery of land shall be entitled to a jury. [unless the court on the application of any

party instituted at any time, not later than seven days after notice of trial or on its own motion at the trial shall consider

a jury to be necessary or desirable for the proper trial of the action and social order). Subject to all existing enactments

limiting, regulating, or affecting the costs payable in any action by reference to the amount recovered therein, the costs

of every civil action, and of every civil question and issue, tried by a jury in the High Court or the circuit court shall follow

the event, unless, upon application made, the judge of the trial shall for special cause shown and mentioned in the order

otherwise direct; and any order of the judge as to such costs may be discharged or varied by the appellate tribunal.”

10. The relevant provisions of s.17 of the Courts of Justice Act 1981 as substituted by s. 14 of the Courts Act 1991 are as follows:-

“(1) Where an order is made by a court in favour of the plaintiff or applicant in any proceedings (other than an action

specified in subsections (2) and (3) of this section) and the court is not the lowest court having jurisdiction to make an

order granting the relief the subject of the order, the plaintiff shall not be entitled to recover more costs than he would

have been entitled to recover if the proceedings had been commenced and determined in the said lowest court.

(2) In any action commenced and determined in the High Court, being an action where the amount of damages recovered

by the plaintiff exceeds IR£25,000 but does not exceed IR£30,000, the plaintiff shall not be entitled to recover more costs

than he would have been entitled to recover if the proceedings had been commenced and determined in the circuit court,

unless the judge hearing the action grants a special certificate, for reasons stated in the order, that, in the opinion of

such judge, it was reasonable in the interests of justice generally, owing to the exceptional nature of the proceedings or

any question of law contained therein, that the proceedings should have been commenced and determined in the High

Court.

(3) In any action commenced and determined in the High Court, being an action where the amount of the damages

recovered by the plaintiff exceeds IR£5,000 [€6,348] (but does not exceed IR£15,000) [€19,046] the plaintiff shall not be

entitled to recover more costs than whichever of the following amounts is the lesser, that is to say, the amount of such

damages or the amount of costs which he would have been entitled to recover if the action had been commenced and

determined in the Circuit Court.”

11. It is perhaps worth noting that s. 17(1) and 17(3) above, both of which are relevant to Mr. Savickis’s claim, use slightly different

wording. Section 17(1) refers to “any proceedings” and s. 17(3) to “any action”. In my view, however, nothing turns upon that

difference.

Decision

12. The award made in favour of Mr. Savickis on appeal, was €17,225. That being so, if his proceedings and his entitlement to costs

are governed by the provisions of s.17(3) of the 1981 Act, as amended, his entitlement to costs is the lesser of two figures, namely,

€17,225 (his award of damages) or the costs he might recover on taxation on the Circuit Court scale.

13. It is correct, as submitted by Ms. Phelan, that Mr. Savickis’s right to pursue his claim for damages for intentional traspass to the

person before a jury was preserved by s. 94 of the 1924 Act and that because his other causes of action arose out of related events

he was entitled, notwithstanding the abolition of juries for personal injuries actions in the Courts of Justice Act 1988, to bring those

claims alongside his claim for assault.

14. Section 94 of the 1924 Act, which Ms. Phelan contends applies, provides that the costs of every issue tried by a jury in the High

Court or the Circuit Court shall, subject to all existing enactments limiting, regulating, or affecting the costs payable in any action by

reference to the amount recovered therein, “follow the event”. That, provision requires no more than that the successful plaintiff

should be awarded their costs. It does not require the court to order that such costs be paid on the scale appropriate to the

jurisdiction in which the claim was determined. Indeed, the section anticipates that the costs payable to a plaintiff, including one who

succeeds in a claim before a jury, may be curtailed or limited by enactment or regulation and in particular by reference to the level of

the damages to which they were found entitled. In other words the section, if it were to be applied to Mr. Savickis, would not give

him a statutory entitlement to High Court costs just because the section provides that costs should “follow the event”.

15. Having considered the submissions of the parties, I am not satisfied that s. 94 of the 1924 Act is the provision which governs the

manner in which this court is required to address the order for costs to be properly made in respect of the proceedings before the

High Court. I believe that s. 94 of the 1924 Act is implicitly amended and superseded by the provisions of s. 17 of the 1981 Act and

that it is that section which must be applied, as it “represents the later thinking of the Oireachtas”: see McLoughlin v. Minister for

the Public Service [1985] I.R. 631, 635, per Henchy J.

16. The wording of s. 17(1) is clear and unambiguous. The section is stated to apply to “any proceedings” (other than the actions

specified therein) once the relief granted was capable of being granted in a lower court. The words “any proceedings” clearly capture

those instituted by Mr Savikis and it is indisputable that the relief he obtained, namely damages €10,000 for assault, €5,000 exemplary

damages and €2,225 damages for negligence was all “relief” that he could have obtained in the Circuit Court, albeit before a judge

sitting alone.

17. If it had been the intention of the Oireachteas to protect from the harsh consequences of the section a plaintiff such as Mr.

Savickis, who having opted for High Court proceedings and a trial by jury, recovered damages which comfortably fell within the

jurisdiction of the Circuit Court, the Act would surely have so provided. But it does no such thing. No distinction is made between

proceedings in which damages are awarded by a jury and those wherein damages are awarded by a judge sitting alone. The fact that

Mr. Savickis could not achieve the relief claimed by his chosen mode of trial in the Circuit Court or that his right to elect to have his

claim heard by a jury has been afforded statutory protection, is, I believe, immaterial in the particular context of this limitation on

costs for which s. 17(3) provides. The mode of trial pursued by the plaintiff is not a consideration to which the court may have regard

when determining the costs that they may recover from a defendant if their award falls within the parameters specified in s. 17(3). It

is the level of the award that determines the amount of costs that may be recovered once the Circuit Court was capable of granting

the relief actualy granted.

18. It is also relevant to note that the section focuses upon the relief granted to a plaintiff as opposed to that relief which had been

claimed by them in their pleadings, an approach which is both logical and fair.

19. While much emphasis was placed on Mr. Savickis’s statutory right to a trial by jury that was not the only method by which he

could have vindicated his personal rights. He could have pursued the same remedy in Circuit Court proceedings and had he done so he

would not have exposed himself to the costs implications of opting to pursue his claim before a jury in the High Court. As I recently

stated in Buckley v. Mulligan [2016] IECA 264, s. 94 of the Courts of Justice Act 1924 merely preserved the right of a plaintiff to seek

to have a jury determine various classes of claims, including those in respect of intentional trespass to the person.

20. In relation to the entitlement of Mr. Savickis to pursue each of the claims in respect of which he was successful before the Circuit

Court, I gratefully adopt the reasoning of Hogan J. who, in his judgment on this costs issue, has explained with great clarity how his

claim for damages for breach of his constitutional rights might properly have been maintained in that jurisdiction.

21. Section 17(3) is, indeed, a harsh section and one which has the potential to adversely impact and indeed potentially obliterate an

award of damages made in favour of a plaintiff. However, I do not think it can be viewed as a penalty of a type which, if applied to

Mr. Savickis’s case, could be considered an impermissible interference with his ability to vindicate his personal rights or one which

could justify the statutory interpretation proposed by Ms. Phelan. v It must be remembered that s. 17(3) only arises for consideration

in this case because the damages to which this Court considered Mr. Savickis entitled fall within the lower half of the then prevailing

Circuit Court jurisdiction.

22. It cannot be disputed that the higher the court selected by a plaintiff for the pursuit of their claim, the greater the costs are

likely to be. In the High Court parties are routinely represented by senior and junior counsel and the solicitor’s instruction fee will be

greater than it would be if the same claim were to be pursued in the Circuit Court. The mode of trial selected will also impact upon the

costs of the parties. A claim brought before a jury in the High Court in respect of an assault will undoubtedly take longer than the

equivalent claim heard by a judge sitting alone.

23. Why should a defendant have to face the expense of defending an action in the High Court when the relief to which the plaintiff

was entitled fell comfortably within the jurisdictional limit of a lower court? Worse still, without the type of statutory disincentive

provided for in s. 17, a defendant who successfully defended such a claim might end up with an order for costs which they were

unable to execute against the plaintiff and remain obliged to discharge the costs of having to meet the claim in the High Court.

24. The provisions of s. 17 of the 1981 Act were clearly intended to ensure that the legal costs recoverable by a successful plaintiff

would be proportionate to any award to which they were lawfully entitled. It is designed to encourage plaintiffs to conduct their

litigation in a fair and a cost efficient manner. The section also provides certainty and predictability. It allows those advising a plaintiff

to reflect and advise upon the costs consequences of failing to achieve an award within the High Court jurisdiction. It also allows a

defendant consider in a more reasoned way the costs risk to be borne by them should they decide to defend rather than settle the

claim.

25. Further, the fact that s. 17(2) permits the trial judge to grant a “special certificate” if the damages awarded fall between €31,743

and €38,092 and thereby allows the plaintiff who falls only marginally short of the Court’s jurisdiction to argue in favour of High Court

costs. It is only if a plaintiff’s claim falls manifestly short of the High Court jurisdiction, as occurred in the present case, that they will

necessarily be penalised for not pursuing their claim on the lower court.

26. The scheme provided for in s. 17 is also one which, in my view, seeks to curtail the potential abuse by litigants of the process of

the court itself. It is destined to protect scarce resources. Litigants who have modest claims must be encouraged to pursue their

claims in the appropriate jurisdiction. They cannot be given unlimited access to the superior courts which must be preserved for

litigation of a different calibre and importance. That is not to downplay the importance of Mr. Savickis’s claim or the seriousness with

which the Court views the regrettable and reprehensible conduct of the respondents in these proceedings. However, that is conduct

that could have been equally effectively dealt with by the Circuit Court had the plaintiff chosen to pursue his claim in that jurisdiction.

Conclusion

27. For the reasons earlier set forth I am satisfied that s.94 of the Court of Justice Act 1924 has been implicitly amended by s. 17 of

the Courts Act 1981. It is accordingly s. 17(3) which governs the costs order to be made in respect of the High Court proceedings.

Section 17 is not capable of the interpretation proposed on Mr. Savickis’s behalf, as this would be contrary to the clear and

unambiguous language of the section. Neither can it be legitimately claimed that to apply s. 17(3) in the circumstances of the present

case would amount to an interference with Mr. Savickis’s ability to vindicate his personal rights as guaranteed under Art. 40.3 of the

Constitution. Those rights could equally have been vindicated without recourse to his statutory right to bring his claim for assault

before a jury in the High Court.

28. Mr. Savickis is therefore entitled to an award of costs in respect of the High Court proceedings in the lesser of the following two

sums namely, €17,225 (that being his award of damages) or the costs he might recover on taxation on the Circuit Court scale.