Background
Kerrigan Sheanon Newman Unlimited Company (KSN) appealed rulings arising from a High Court discovery motion in judicial review proceedings against the Sustainable Energy Authority of Ireland (SEAI). The High Court had awarded SEAI its costs after finding in its favour on the discovery issues, including KSN’s request for category 6(b) discovery.
On the substantive appeal, KSN succeeded on the category 6(b) issue, while SEAI prevailed on the other issue concerning access to a confidentiality club. The Court of Appeal provisionally proposed that both the High Court motion costs and the appeal costs should be costs in the cause. SEAI challenged that proposal only in relation to the High Court costs.
The Court’s Holding
The Court of Appeal revisited the High Court costs order because it had rested on a finding—KSN’s lack of entitlement to category 6(b) discovery—that was overturned on appeal. Nevertheless, SEAI remained the broadly successful party because it had prevailed on most of the issues argued before the High Court.
The Court awarded SEAI 60% of its costs of the High Court discovery motion. It declined to make separate costs awards for each party followed by a set-off, considering that approach unnecessarily costly and burdensome. The costs of the appeal, including the dispute over the final costs order, were made costs in the cause.
Key Takeaways
- An appellate reversal on one discovery issue justified reconsidering a High Court costs award based partly on the overturned result.
- A party that succeeds on most issues may receive a proportion of its costs even though its success was not complete.
- The Court preferred a single percentage award over cross-awards and set-off, avoiding the additional expense and effort of separate costs assessments.
Why It Matters
The ruling illustrates the Court of Appeal’s broad, practical approach to allocating costs where success is divided across multiple discovery issues. It also confirms that an underlying costs order may need adjustment when the appellate outcome changes a material part of the basis on which that order was made.
For litigants, the decision shows that detailed calculations of time spent on individual issues will not necessarily determine the award. The Court may instead assess overall success and make a proportionate costs order designed to avoid further procedural expense.