by Fergal Mullins April-10-2025 in Healthcare Law

 

The High Court’s recent consideration of the relevant criteria to be assessed in respect of the awarding of a differential costs order is noteworthy. It formed part of Ms Justice Emily Egan’s March 2025 judgment in the case of Martina Quinlan v Michael Quinlan [2025] IEHC 170.

 

Background

The plaintiff sought damages for personal injuries suffered by her as a result of an assault upon her by her defendant husband. Although particulars of the plaintiff’s personal injuries were supported by an expert report, no report was presented to the Court and no doctor was called to give evidence on behalf of the plaintiff.  The Court was therefore restricted to awarding damages for the immediate assault and the sum of €25,000 was deemed appropriate to account for the plaintiff’s pain and suffering.

 

Costs

In relation to costs, the plaintiff sought Circuit Court costs together with a certificate for Senior Counsel whilst the defendant argued that no certificate for Senior Counsel ought to be awarded and that a differential costs order should apply pursuant to section 17 (5) of the Courts Act 1981, as amended by substitution by section 14 of the Courts Act 1991. Authorities were opened to the Court by the parties in support of their respective submissions including Moin v Sicika and O’Malley v McEvoy [1], McKeown v Crosby [2], Rafter v Edmund Rice School’s Trust Company Ltd [3] and Collins v Parm[4].

 

Relevant Principles

Having considered the above authorities, Ms Justice Egan helpfully derived the following eight principles from these authorities to guide her assessment of the merits of awarding a differential costs order:

  1. In circumstances where the trial judge has awarded damages to a plaintiff which are within the jurisdiction of a court lower than that in which proceedings commenced and were determined, section 17(5) allows the trial judge to either (a) measure a sum that he/she considers to be the difference between the costs actually incurred and those that would’ve been incurred had proceedings been issued and determined in the appropriate lower court or (b) decline to make any measurement of the difference and instead refer the matter to adjudication.
  2. The Court noted that prior to the introduction of section 17(5) of the Courts Act 1981, unless a defendant applied to have proceedings remitted to the Circuit Court, there was no consequence for commencing proceedings in the High Court needlessly, other than that a successful plaintiff would be awarded Circuit Court costs and also potentially a certificate for Senior Counsel. The Court noted that the introduction of this legislative provision was intended to address this unfairness and highlighted the importance of this provision to incentive plaintiffs to institute proceedings in the lowest appropriate court.
  3. Once a sum of damages is awarded that a lower court would have had the power to award, judicial discretion to make a differential costs order is triggered. However, this fact alone does not fetter judicial discretion and the courts may decline to make such an order in certain circumstances including where the award of damages is marginally inside the jurisdiction of the lower court or where unpredictable developments arise during the trial. On the other hand, the Court acknowledged that if an award of damages is well within the jurisdiction of the lower court, this is a “weighty factor” in favour of awarding a differential costs order.
  4. Whether there was any realistic basis for commencing the proceedings in the higher court will also be a consideration and if no such justification arises, a differential costs order will be hard to resist.
  5. The basis for not only commencing proceedings in the higher court will be assessed but also whether it was also appropriate to continue those proceedings in that Court at any given moment during the proceedings.
  6. Case law was referenced to illustrate that a differential costs order will be significantly more difficult to resist where the defendant had warned the plaintiff in advance that an order would be sought if necessary. The timing of such a warning letter is also of relevance and notably in the case of Moin v Sicika, the fact the warning letter was served on the plaintiff eleven months before trial supported the defendant’s successful application for a differential costs order.
  7. As touched upon in principle two above, there is no obligation on a defendant to apply to remit the proceedings to the lower court in order to seek a differential costs order.
  8. All circumstances of the case must be assessed where an application for a differential costs order is sought.

 

Application to Present Case

Ms Justice Egan was satisfied that it was appropriate for the plaintiff to have commenced proceedings in the High Court and that it was also appropriate to progress this matter in the High Court up until the defendant served a costs differential warning letter on 5 February 2025, a little over three weeks before the hearing date. The Court found therefore that all costs up until 5 February 2025 were properly incurred as a High Court matter.

However, the Court further considered the significance of the defendant’s 5 February 2025 letter, that neither the plaintiff’s medical records nor her medical reports could be placed before the Court and that the attendance of the plaintiff’s experts (General Practitioner & Orthopaedic Surgeon) could not be secured.

It therefore held that the plaintiff should have, upon receipt of the 5 February 2025 letter, applied to adjourn the High Court hearing in order to remit it to the Circuit Court. This failure led Ms Justice Egan to award a differential costs order in the defendant’s favour. However, it was deemed that the plaintiff’s Senior Counsel’s brief fee was already properly incurred at that stage and therefore the order would be limited to the difference between the defendant’s solicitor’s trial attendance costs for a Circuit Court assessment with no defence witnesses as opposed to his trial attendance costs for a High Court assessment with no defence witnesses.

 

Conclusion

The above-mentioned eight principles are notable as they formed the basis of the Court’s assessment of the application for a differential costs order. From a practical perspective, although the judgment illustrates that there is no obligation on a defendant to bring an application to remit proceedings to a lower court in order to apply for a differential costs order, it highlights the benefit of issuing warning letters to plaintiffs where an application for a differential costs order is being contemplated. Furthermore, the judgment provides an insight into some of the factors that may influence judicial discretion to award a differential costs order such as how close the quantum of damages is to the limit of the jurisdiction of the lower court and whether any unforeseen developments arose during the passage of proceedings. These principles are likely to guide the courts in assessing similar applications going forward and are instructive for all litigants.  

 

https://hayes-solicitors.ie/News/The-Growing-Role-of-Costs-Differential-Orders-And-Calderbank-Letters

 

[1] [2018] IECA 240

[2] [2021] IECA 139

[3] [2023] IECA 188

[4] [2024] IECA 189

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About the Author

Fergal Mullins
Fergal Mullins

Fergal Mullins is an associate solicitor in the Healthcare team at Hayes solicitors. He primarily advises clinical practitioners, hospitals and indemnity bodies on the defence of clinical negligence claims. Prior to joining Hayes, Fergal worked in a London firm in the area of clinical negligence, having trained and worked post qualification in a large Dublin firm in the same area.