Dardis Judgment - 'Totally Unrealistic' Claims And Costs Implications

The Impact on Costs in the Conduct of Personal Injuries Litigation

The recent decision of the High Court in Dardis v Poplovka (Unreported, High Court, Barr J., 28 April 2017) [2017] IEHC 249 highlights the fact that while costs generally follow the event the court can look behind the rule and exercise its discretion in awarding costs.

The plaintiff in this case was awarded damages in respect of injuries arising out of a road traffic accident. In a subsequent application for costs submissions were made as to the application of the general rule under Order 99 of the Rules of the Superior Courts that costs follow the event unless the court otherwise orders.

The plaintiff claimed that in the circumstances where the claim had been successful and where the defendant could have protected themselves by making a tender offer or an offer pursuant to s. 17 of the Civil Liability and Courts Act, 2004 that they were entitled to their costs. They claimed that it is only when justice demands, should the general rule be departed from.

The defendant had made a tender offer and they conceded that given the fact that the level offered had been exceeded in the court's judgment on the face of things the plaintiff would be entitled to their costs. However, further arguments were raised by the defendant as to the conduct of the trial and the pursuit of claims that were bound to fail. The defendant argued:

when this case had been called on at the call-over of cases, it was indicated that the case would take approximately two days at hearing - the action took eight days at hearing a schedule setting out the plaintiff's claim for past and further loss of earnings, amounting to €620,042.00 was presented - the court in its judgment had effectively disallowed the entire of the claim for past loss of earnings and future loss of earnings, describing such claim as being "totally unrealistic" and had instead, allowed a modest sum of €20,000.00 for loss of opportunity on the job market

The defendant stated that the plaintiff had effectively lost the issue in relation to his loss of earnings claim and cost the court eight days at hearing where it was estimated to be a lot less. The decision of Clarke J. in Veolia Water U.K. plc v Fingal County Council (No. 2) [2007] 2 I.R. 81 was cited to bolster the assertion that the plaintiff was not entitled to their full costs where they failed on discrete issues which arose at hearing.

The defendant sought his costs for six days, being...