Awards of appeal costs have been made against plaintiff’s whose damages awarded by the High Court were reduced by the Court of Appeal.
In Anthony and Rita Shannon v Debbie O’Sullivan the Court of Appeal significantly reduced High Court damages awards. The Appeal Court accepted that the Plaintiff’s were entitled to the costs of the High Court proceedings.
There was contention regarding the costs of Appeal. During the Appeal the defendant had made Calderbank offers which were not accepted and which were remarkably close to the awards given by the Court of Appeal, each being just above the amount awarded.
The Defendant contended that as per Ord. 99 r. 1(4) of the Rules of the Superior Courts, costs should follow the event. That being so, it was contended that the defendant’s costs of both appeals should be set off against the orders for costs made in favour of the plaintiffs in the High Court. In addition, Mr. Fox S.C., on the defendant’s behalf relied upon the two letters of offer in support of his application. These, he submitted, may be taken into account by the court under the provisions of Ord. 99 r. 1A (b) when considering the costs of the appeal.
Mr Treacy S.C., for the Plaintiff’s asked the court to note that the Calderbank offers represented 55% of the award made to Rita Shannon and 40% of that made to Anthony Shannon and that the Calderbank offers were less than the amounts which the defendant was required to pay to the plaintiffs as a condition of the stay granted by the trial judge, i.e. €80,000 in the case of Rita Shannon and €55,000 in the case of Anthony Shannon. These amounts, he said were accordingly considered unappealable by the High Court judge. Plaintiff counsel noted that the awards of the Court of Appeal were a multiple of the original tenders made by the defendants, i.e., €24,600 in Mrs. Shannon’s case and €14,600 in Mr. Shannon’s case. He argued that the Calderbank offers lacked certainly as they did not specify that the defendant would discharge the plaintiffs’ costs incurred between the date of judgment and the date upon which the offer was too close. Certainty was a prerequisite to penalising the plaintiff for non acceptance of such an offer and there was no certainty in the offers made by reason of the lacunae identifie.
Counsel for the Plaintiffs sought to advance the argument that they were wrong footed by the judgments of the same court in Payne v. Nugent  IECA 268 and Nolan v. Wirenski  IECA 56, decisions which Mr Treacy S.C., said had led to a recalibration of damages in personal injuries actions. He further argued that the Court of Appeal had endorsed the views expressed by the trial judge as to the good character of both plaintiffs.
“The starting point for the court’s consideration must be Ord. 99 of the Rules of the Superior Courts which provide that costs shall, unless otherwise ordered, follow the event. Hence, without ever engaging with Calderbank letters the costs should, having regard to the fact and extent of the defendant’s success on each appeal, be awarded to the defendant”.
The Court rejected that the Calderbank offers were defective. Further the court denied that the previous recent cases cited had recalibrated damages in personal injuries. The Court awarded the costs of appeals against the Plaintiffs to be set off against the High Court costs orders.
The full decision is here