Court of Appeal awards 50% costs against appellant
A recent Court of Appeal judgment - in which we acted for the Respondent Bank - has confirmed that, where a defendant appellant seeks to rely on points of appeal not included in their notice of appeal, they risk an order for costs being made against them.
Date added
04.01.2021
Author
Hugh Kane, David Walsh & Aideen Culligan
Delivering judgment on 18th January 2021 in “KBC Bank Ireland PLC -v- Hugh Corrigan and Anita Corrigan High Court Record No. 2016/1246 S Court of Appeal Record No. 2019/417”, the Court of Appeal said that “basic fairness requires that a Respondent ought not be blindsided by the launch of unheralded novel points at an appeal hearing without even an application for leave being brought”.
Background
KBC Bank Ireland PLC (“the Bank”) had issued summary judgment proceedings against the Defendants in 2016, and on 11th July 2019, summary judgment was awarded to the Bank against the Second Named Defendant (“the Appellant ) in the sum of €363,445.52.
The Appellant appealed the judgment and sought orders setting it aside and remitting the case to a plenary hearing. In the Appellant’s notice of appeal she argued that the trial judge erred in rulings relating to the filing of affidavits by the Bank before the hearing of the summary action, and the presentation of a further authority by the Bank on the morning of the hearing.
After judgment had been awarded, the Supreme Court delivered the much-critiqued decision in “Bank of Ireland Mortgage Bank -v- O’Malley” (“O’Malley”) where the Court held that plaintiffs in debt cases are required to provide full details of the debt that is owed together with detailed particularisation in the endorsement of claim of a summary summons.
No application was made by the Appellant to amend her notice of appeal to rely on the decision in O’Malley; however, the Appellant’s filed written submissions quoted at length from the decision and, in contrast to her notice of appeal, the Appellant effectively sought to rely solely on the decision.
In advance of the hearing of her appeal, the Bank’s solicitors had written to the Appellant, on a number of occasions, offering to remit the underlying proceedings back to the High Court to allow it amend its summary summons in line with O’Malley. However, and notwithstanding the Court’s urging that she consent to the remittal of the proceedings to the High Court, the Appellant refused to consent and she pressed on with the hearing of her appeal before a three judge Court of Appeal.
Consequences
In delivering judgment on behalf of the Court of Appeal, Ms Justice Whelan dismissed all of the Appellant’s grounds of appeal and held that the new grounds of appeal which the Appellant had sought to rely on at the hearing could not be entertained by the Court. However, as the Bank had conceded that O’Malley was applicable to the case, the balance of justice favoured setting aside the High Court’s judgment and remitting the matter to the High Court to allow the bank to amend its proceedings.
As the Bank was not opposing the Appeal, but rather, sought to have the proceedings remitted to the High Court, the Court took a dim view of the Appellant’s insistence that the matter proceed to a full hearing. Indeed, the Court criticised the Appellant’s insistence in pursuing a hearing of her Appeal and launching new grounds and arguments without warning to the Bank, stating that to do so was not reasonable ‘in any circumstances where the grounds raised were not maintainable and did not succeed’.
On the issue of costs, the Court noted that the justice of the case warranted no order for costs being made in respect of the High Court proceedings up to 1st September 2020 (with the case being heard on 8th September 2020); however, it ordered that the Appellant pay 50% of the Bank’s costs incurred from 1st September 2020, including the hearing of the Appeal.
A link to the Court’s judgment can be found here:
This Article is not intended as legal advice. For further information on judgment proceedings and related matters, please contact our Hugh Kane or David Walsh, details as below.
AUTHORS
Hugh Kane, Partner
E: hkane@kanetuohy.ie
T: 01 672 2233
David Walsh, Solicitor
E: dwalsh@kanetuohy.ie
T: 01 672 2233
Aideen Culligan, Trainee Solicitor