The Court of Appeal has today delivered a significant costs ruling in the case of McKeown v Crosby & Anor [2021] IECA 139.
Award of Damages
The principal judgment in this case was handed down by the Court of Appeal on 11 August 2020, in which the plaintiff's award of damages of ?76,000 in the High Court was substantially reduced to ?41,000. You can read more about that judgment in our previous briefing here.
Issue of Costs
At the beginning of the High Court proceedings, the defendants had indicated their intention to seek a differential costs order should the damages ultimately awarded fall short of the High Court jurisdiction.
Following the High Court hearing, the defendants' solicitors then also issued a "Calderbank" letter (see our previous briefing on the purpose and effect of Calderbank letters here) offering a sum of ?47,156 plus Circuit Court costs in settlement, subject to certain provisos. That offer was declined by the plaintiff and the defendants issued a notice of appeal. The plaintiff then made a counter-offer or "reverse Calderbank" indicating that they would settle for a sum of ?61,000 plus costs at the High Court level. This was also not accepted and the appeal proceeded.
Judgment
Ultimately, the Court of Appeal agreed with the defendants that there was no basis on which it could exercise its discretion to decline to make a differential costs order in the circumstances. The plaintiff was awarded Circuit Court costs on the basis of the reduced amount of damages of ?41,000, whilst the defendants were awarded both the costs of the appeal and the excess costs incurred by them in defending the case in the High Court.
Commentary
This case represents a cautionary tale for plaintiffs, highlighting the vital importance of ensuring that proceedings are brought at the correct jurisdictional level.
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