High Court of Ireland Decisions

HIGH COURT

[2025] IEHC 170

                                                                                                   Record Number: 2019/ 9426P

BETWEEN:

MARTINA QUINLAN

                                                                                                                                                        PLAINTIFF

AND

 

MICHAEL QUINLAN

                                                                                                                                                     DEFENDANT

 

Ex Tempore Judgment of Ms. Justice Emily Egan delivered on the 12^th day of March, 2025

1.                  In these proceedings, the plaintiff sought damages for personal injuries, loss, and damage suffered by her as a result of an assault, battery and trespass to the person upon her by the defendant, her husband, in their former family home on 14^th December 2013. The Court delivered judgment in this matter on 28^th February 2025.

2.                  An unusual feature of this case was that, although the plaintiff sought damages for personal injuries and initially provided particulars of her personal injuries on the basis of a report from her General Practitioner and/or an Orthopedic Surgeon, no report from either was presented to  the Court and neither of these doctors was called to give evidence.

3.                  In the absence of medical evidence, this Court was unable to find on the balance of probabilities that the plaintiff had sustained any particular clinical injury in the assault or that the injuries sustained in the assault necessitated a particular course of medical or surgical treatment.  Nor, in the absence of medical evidence, could the Court make any findings or draw any conclusions as to the extent, if any, to which the injuries sustained in the assault may impact the plaintiff's current condition and prognosis.

4.                  As a result of this, the Court was restricted to awarding damages for the immediate assault- the agony of the moment as it were -together with damages for pain and suffering in the immediate aftermath of the assault. The Court therefore awarded the plaintiff €25,000 general damages for pain and suffering.

5.                  The matter came back before me on 7^th March 2025, for the purpose of addressing this Court upon costs. The plaintiff seeks Circuit Court costs together with a certificate for Senior Counsel.

6.                  The defendant argues that no certificate for Senior Counsel ought to be awarded and also that this Court ought to make a differential cost order pursuant to the provisions of s. 17 (5) of the Courts Act 1981, as amended by substitution by s. 14 of the Courts Act 1991.

7.                  The parties opened the relevant authorities in relation to s. 17 (5) to the Court; which include: Moin v. Sicika and O'Malley v. McEvoy [2018] IECA 240, McKeown v. Crosby [2021] IECA 139, Rafter v. Edmund Rice School's Trust Company Ltd [2023] IECA 188 and Collins v. Parm [2024] IECA 189.

8.                  The following principles arise from these authorities.

9.                  First;  s. 17 (5) gives two options to a trial judge who has awarded damages to a plaintiff which are within the jurisdiction of a court lower than that in which the proceedings have been commenced and determined. The trial judge may simply measure a sum which he or she considers to be the difference between the costs actually incurred and those that would have been incurred had the proceedings been commenced and determined in the appropriate court and then direct that the plaintiff pay that sum to the defendant. It is a matter for the trial judge to decide if they are in a position to measure that difference in any particular case. This option has an attractive simplicity and avoids the need for the additional costs of adjudication. Although the trial judge must generally have some evidential or other objectively defensible basis for the manner in which costs are measured, in simple and straightforward cases, a judge will have personal knowledge of the sum likely to be allowed. The alternative option open to the trial judge is to decline to make any measurement of the difference but to instead refer the matter for adjudication

10.              Second, the Court must have regard to the legislative purpose of s. 17 (5) of the Courts Act 1981. This was to bring about a change in the customs of the past where, unless the defendant made an application to have the proceedings remitted to the Circuit Court, there was no consequence for commencing the proceedings in the High Court needlessly, other than that a successful plaintiff would receive only Circuit Court costs and in all probability a certificate for Senior Counsel. This resulted in an unfairness to successful defendants, which the section was intended to address. Therefore, the legislative purpose of s. 17 (5) is to provide a strong incentive to the institution of proceedings in the lowest court having jurisdiction to make the appropriate award.

11.              Third; Judicial discretion to make a differential costs order is triggered by the award of a sum that a lower court would have had the power to award. However, this fact alone does not require the Court to make an order under s.17 (5). The Court may still in its discretion decline to do so. This may arise, for example, where the award is very close to the limit of the jurisdiction of the lower court. It may also arise where, notwithstanding the fact that it was appropriate to commence proceedings in the higher court, there has been some unpredictable developments during the trial which has the effect of reducing the ostensible value of the claim. This might apply where, for example an apportionment of liability has the effect of reducing damages to those within the jurisdiction of a lower court where the full value was undoubtedly, or at least arguably, within the higher jurisdiction. Similarly, an award of special damages might be disallowed with the same effect. Alternatively, the plaintiff might have commenced proceedings in the High Court on the basis of medical opinion subsequently determined at trial to have been incorrect. Overall, therefore the Court may decline to make a differential costs order where there has been some unpredictable or unforeseen development, usually during the course of the trial, reducing the value of damages from that originally anticipated.

12.              Fourth; the Court will consider whether in the first instance there was any realistic basis for commencing the proceedings in the higher court. If at the commencement of the proceedings, damages could only be anticipated to fall within the jurisdiction of the lower court, then a differential costs order will be hard to resist. If, on the other hand, it was reasonable to commence the proceedings in the higher court, but an unpredictable development of the nature set out above has unexpectedly reduced damages, then this will be a factor to be weighed in the balance against an argument for a differential costs order

13.              Fifth; however, it also appears that the outcome of a differential costs order application will depend not only upon whether it was reasonable to commence the proceedings in the High Court but, on whether it was also appropriate to continue those proceedings in that Court at any given time.

14.              Sixth, the case law demonstrates that a differential cost order will be considerably more difficult to resist where the defendant has warned the plaintiff in advance that same will be sought. However, it also seems to me that the timing of the relevant warning letter will also be of relevance to the assessment. Furthermore, although a warning letter is relevant to the Court's discretion, it does not dictate the outcome of an application for a differential costs order.

15.              Seventh; the case law also demonstrates that there is no obligation on a defendant to bring an application to remit the proceedings to the court below in order to apply for a differential cost order.

16.              Eighth; in any case in which a differential costs order is sought, it is incumbent on the trial judge to have regard to the nature of the claim and all the reasons for which the plaintiff fell within the lower jurisdiction or, as the section puts it, all the circumstances of the case.

17.              Having set out the above principles I now turn to the present case.

18.              The defendant argues that in light of the quantum of the award in this case, this Court's discretion to award a differential costs order is engaged. I fully accept that this is so. The defendant also relies on the fact that he wrote a cost differential warning letter on  5^th  February 2025, to which the plaintiff could have responded by remitting proceedings to the Circuit Court.

19.              The defendant also contends, correctly in my view, that where, as here, the damages award is well within the jurisdiction of the Circuit Court, this is a weighty factor in favour of a differential costs order.  The Court is therefore urged to make a differential costs order in accordance with the principle and purpose of s. 17 (5).

20.              The plaintiff argues that this is an assault and battery case, and that the nature of the claim has a family law element. It is argued that the making of a differential costs order by the Court has the potential to further increase family tensions. The plaintiff emphasises that the defendant has, in a civil court been convicted of what is effectively a criminal offence. It is said that making a differential costs order would be to reward the defendant for his actions. It is submitted that the plaintiff has had to recover from the pain, terror  and humiliation of an assault by her husband in her family home. As such, it would be unjust to fix the plaintiff with a differential costs order.

21.              Sympathetic as I am to the plight of the plaintiff, it does not seem to me that, in and of themselves, these considerations would persuade the Court to decline to make a differential costs order. 

22.              However, of more relevance is this Courts' analysis of the application of the eight principles outlined above: the consideration of the nature of the claim and of all the reasons for which the plaintiff fell within the lower jurisdiction.

23.              As regards the nature of the claim, I am fully satisfied on the basis of the Statement of Claim that it was appropriate to commence proceedings in the High Court. Indeed, as counsel for the plaintiff points out, the defendant has not contended to the contrary.

24.              I am also entirely satisfied that, on the basis of the matters pleaded in the further particulars of personal injury of 24^th October 2024, on any realistic assessment the matter was capable of falling within the jurisdiction of the High Court. Further, although I have been given no information as to precisely why it was not possible to secure the attendance of the plaintiff's General Practitioner or Orthopedic Surgeon at trial, there is no reason to assume that this unfortunate development had occurred, or was predicted to occur, at the time the plaintiff applied to list the matter for trial on 26^th November 2024. Indeed, bearing in mind the proximity in time of the further particulars of personal injury to the application for the trial date, all indications are to the contrary.

25.              In short, I find as a fact that it was appropriate not only to commence proceedings in the High Court but to maintain same in the High Court and to apply on 26^th November 2024 to list this action for hearing in January 2025 on an assessment only basis in the High Court. Specially, as the matter was listed for trial in the High Court, it would have been appropriate for both the plaintiff and the defendant to retain Senior Counsel for the hearing if they so wished.

26.              Turning to the reasons for which damages ultimately fell within the lower jurisdiction, I note the following: The matter was initially assigned a hearing date in January 2025. This date was abandoned, inter alia, because the defendant sought formal discovery of the plaintiff's medical records by letter dated 21^st January 2025. The parties appear to have only reached agreement as to the scope of the discovery order on 5^th February and discovery was made by the plaintiff on 19^th February 2025. Unfortunately, no agreement was reached between the parties for the admission of these medical records and no formal steps were taken by the plaintiff to place these records before the Court.

27.              However, up until this point in early February 2025, there was still every prospect that the plaintiff's medical records would be placed before the Court.  There was also still every prospect that the plaintiffs' medical records would therefore provide objective evidence to the Court upon which it could draw conclusions in relation to the injuries sustained by the plaintiff in the assault. Again, I emphasize that if borne out by either medical records or a medical report, these injuries could on any realistic assessment have attracted High Court damages. As such, up to this date in early February 2025, it was therefore reasonable to maintain proceedings in the High Court and for the plaintiff and the defendant to retain Senior Counsel if they so wished.

28.              On an unspecified date, the defendant -as was his right- declined to agree the admission of the plaintiffs' medical reports.  Further, on an unspecified date in February 2025, the defendant -as was his right- also declined to agree the admission of the medical reports. However, this is very late in the day bearing in mind that the trial was listed for hearing on 28^th February.

29.              In all the circumstances, I am satisfied that, by the time that the defendant wrote the differential costs warning letter on the 5th  February, the matter had already been properly listed for hearing in the High Court which would justify retaining  Senior Counsel if desired. Indeed, this warning letter post-dated the first trial date in January 2025. I therefore find that all costs incurred prior to the differential costs warning letter of the 5th of February were properly incurred as a High Court matter.

30.              The next issue to determine is whether the Court ought to make a differential costs order for the period after the defendant's warning letter on 5th February 2025. In terms of trial preparation, I would anticipate that, in an action in which no witnesses were called by the defendant, the differential costs of trial preparation over this period would be minimal. I decline to make any differential costs order in that regard.

31.              The final issue to determine, is whether the Court ought to make a differential costs order in respect of increased costs of the trial date itself, bearing in mind that same proceeded before the High Court but commanded only Circuit Court damages. Very shortly before the trial date, it would have been evident to the plaintiff that the defendant was seeking a differential costs order on foot of his letter of 5^th February 2025, that neither the plaintiff's medical records nor her medical reports could be placed before the Court and that the attendance of her General Practitioner and Orthopedic Surgeon at trial could not be secured.

32.               At this stage, the plaintiff could - and in my view should - have considered  applying to adjourn the High Court hearing some two weeks later in order  to remit same to the Circuit Court. It is this failure which in my view compels this Court to make a differential costs order. However, bearing in mind that the Senior Counsel's brief fee was already properly incurred,  differential costs will be modest. They are essentially limited to the difference between the defendant's solicitor's trial attendance costs for  a 90-minute Circuit Court assessment with no defence witnesses as opposed to his trial attendance costs for a 90 minute High Court assessment with no defence witnesses.

33.              I will measure same at €1200 plus VAT of €276 totaling, €1,476.

34.              I therefore award the plaintiff's costs on the Circuit Court scale with a certificate for Senior Counsel. I order a differential costs order in the amount of €1,476. I will make no order for costs in respect of the costs hearing.