Grounds for differential costs orders

Background

The plaintiff sought damages for personal injuries suffered by reason of an assault, battery, and trespass to her person by her husband at their former family home in 2013. Proceedings were issued in the High Court and was initially assigned a hearing date which was subsequently adjourned when the defendant sought discovery of the plaintiff’s medical records.

The defendant’s solicitors letter sent a costs differential warning letter to the plaintiff reserving the right to apply for a differential costs order in the event damages were awarded below the High Court threshold.

Discovery was made by the plaintiff on 19 February 2025, but no agreement was reached between the parties for the admission of the medical records and no formal steps were taken by the plaintiff to place them before the Court. At trial, the plaintiff did not submit any medical evidence to the High Court in respect of her injuries. In the absence of medical evidence, the court could not find that the plaintiff suffered any particular clinical injury and could not properly consider her prognosis. Accordingly, the High Court could only award damages for the “agony of the moment” together with damages for pain and suffering in the immediate aftermath of the assault, totalling €25,000.

Costs

The defendant argued that no certificate for senior counsel ought to be awarded and that the court ought to make a differential costs order pursuant to s.17 of the Courts Act 1981 (as amended).

The plaintiff sought Circuit Court costs together with a certificate for senior counsel, arguing that it would be unjust to fix her with a differential costs order in circumstances where same would further increase family tensions and where the defendant had “in a civil court been convicted of what is effectively a criminal offence” and would effectively be awarded for his actions. 

Ms Justice Egan noted as follows:

1. 17(5) provides two options to a trial judge awarding damages within the jurisdiction of a lower court – either to measure the sum between the costs actually incurred and those that would have been incurred had the proceedings been commenced and determined in the appropriate court and to direct the plaintiff to pay that sum to the defendant, or to decline to make any measurement of the difference but instead to refer the matter to adjudication.
2. The court is obliged to have regard to the legislative purpose of s.17(5) of the Courts Act 1981, which was “to provide a strong incentive to the institution of proceedings in the lowest court having jurisdiction to make the appropriate award.”
3. The 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.
4. The court must consider whether there was any realistic basis for commencing proceedings in the higher court in the first place, and whether it was appropriate to continue the proceedings in that court at any given time.
5. The making of a differential costs order will be more difficult to resist when the defendant has warned the plaintiff in advance that same will be sought, and there is no obligation on a defendant to apply to remit the proceedings to a lower court.
6. In any case in which a differential costs order is sought, the trial judge must have regard to all the circumstances of the case.

Considering the facts and pleadings of the case before her, Ms Justice Egan was satisfied that it was appropriate to commence proceedings in the High Court. However noting that the plaintiff was aware she could not secure the attendance of medical experts in court, the Judge considered the plaintiff  should have applied to adjourn the High Court hearing some two weeks later to remit same to the Circuit Court.

Ms Justice Egan found that the failure to remit the proceedings at that stage compelled the court to make a differential costs order, 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 trial attendance costs for a 90-minute High Court assessment with no defence witnesses. As such, the Judge made a differential costs order in the amount of €1,476 including VAT.

Conclusion

This case stresses the willingness of the High Court to make differential costs orders where there are appropriate grounds to do so. It also confirms the importance of serving a costs differential letter as early as possible in proceedings where it is suspected that proceedings have been instituted in the incorrect jurisdiction. The earlier this is done, the greater the level of costs recovery is likely to occur.