PT (A Minor) v Health Service Executive - Costs Ruling

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  PT (A Minor) suing by his parents and next friends LT and MT v Health Service Executive (Approved) [2026] IECA 44 (25 March 2026)

URL: https://www.bailii.org/ie/cases/IECA/2026/2026IECA44.html
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[2026] IECA 44 | | |
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THE COURT OF APPEAL

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Court of Appeal Record No.: 2025/85

High Court Record No.: 2022/1444 P

Neutral Citation No.: [2026] IECA 44

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Whelan J.

Binchy J.

Hyland J.

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BETWEEN/

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PT (A MINOR) SUING BY HIS PARENTS AND NEXT FRIENDS LT AND MT

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PLAINTIFFS/

APPELLANTS

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- AND -

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HEALTH SERVICE EXECUTIVE

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DEFENDANT/

RESPONDENT

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RULING ON COSTS of Mr. Justice Donald Binchy delivered on the 25 th day of March 2026 ??

1. On 22 nd December last I delivered judgment in an appeal in these proceedings from an order made by Reynolds J. in the High Court made on 18 th March 2025 whereby Reynolds J. ordered that two questions of fact central to the determination of liability in the proceedings should be tried before any other, by way of modular trial.  I held that the appeal should be dismissed and indicated a provisional view that since the defendant/respondent had been entirely successful in the appeal, my provisional view was that it was entitled to an order requiring the plaintiff/appellant to discharge the costs incurred by the respondent in connection with the appeal.  However, in the usual way in such circumstances the appellant was afforded the opportunity to make written submissions as to why such an order should not be made, and the appellant availed of that opportunity delivering written submissions on 29 th January, with the respondent filing replying submissions on 20 th February.

2. In Daly v. Ardstone Capital Ltd [2020] IEHC 345, Murray J. summarised the principles to be applied by a court in determining the costs of an interlocutory application having regard to ss. 168 and 169 of the Legal Services Regulation Act, 2015 and the Recast Order 99 of the Rules of the Superior Courts, as follows (at para. 15):

(a)  ?? The general discretion of the court in connection with the ordering of costs is preserved (s. 168(1)(a) and O. 99, r. 2(1).

(b) ??? The court should, unless is cannot justly do so, make an order for costs upon the disposition of an interlocutory application (O. 99, r. 2(3)).

(c) ??? ?In doing so, it should " have regard to " the provisions of s. 169(1) (O. 99, r. 3(1)).

(d)  ?? Therefore at least in a case where the party seeking costs has been " entirely successful " - it should lean towards ordering costs to follow the event (s. 169(1)).

(e) ??? ?In determining whether to order that costs follow the event the court should have regard to the non-exhaustive list of matters specified in s. 169(1) (a)-(g) (O. 99, r. 3(1)).

(f) ???? Those matters include the conduct of the parties before and during the proceedings, and whether it was reasonable for a party to raise, pursue or contest one or more issues (s. 169(1)(a) and (b)).

3. It is the appellant's contention that this is a case in which the trial judge will be best positioned, upon the conclusion of the substantive proceedings, to rule upon the liability for the costs incurred in connection with this application both in the High Court and in this Court. ?Put otherwise, and relying upon the principle articulated by Murray J. at para. 15(b) of his judgment in Daly v. Ardstone Capital Ltd., the appellant contends that this is not a case in which this court can, upon the determination of this interlocutory application justly make an order for the costs incurred in this application until the substantive proceedings have been determined.  Accordingly, the appellant asks this Court to reserve the costs of the application in the High Court as well as the costs of this appeal and order that all such costs be reserved and determined by the trial judge upon the conclusion of the proceedings.

4. In advancing this argument, the appellant submits that there remains a significant dispute between the parties as to the evidence that will have to be heard by the High Court in order to determine the two questions that have been sent forward for modular trial.  Depending on how that issue is resolved, it remains to be seen whether or not the modular trial which the court has directed on the application of the respondent will ultimately prove to be an efficient mechanism for the determination of those issues, or alternatively whether it might result in the proceedings taking longer than they might have done had they been allowed to continue by way of a single module dealing with all liability issues.  The appellant contends that this is almost certainly likely to occur if he is successful in the initial modular hearing.  The appellant poses the question: If upon hearing the case, the trial judge concludes that the defendant is incorrect and that the modular hearing mechanism has been cumbersome and inefficient, why should the defendant be awarded the costs associated with it applying for same?

5. The appellant relies upon the judgment of Clarke J. (as he then was) in ACC Bank v.? Hanrahan [2014] IESC 40, [2014] 1 I.R. 1, in which Clarke J. drew a distinction between interlocutory applications dealing with matters such as discovery and particulars on the one hand, where the merits of the result of such motions will not in the majority of cases be in any way revisited at the trial, and on the other hand applications where the factual matrix behind the application will be revisited at trial.  The appellant refers to the following passages from the judgment of Clarke J.: -

"3.4 Slightly different considerations seem to me to apply in cases where, at least to a material extent, some of the issues which are before the Court at an interlocutory stage arise or are likely to arise again at the trial in at least some form.  As I noted in Allied Irish Banks v. Diamond [2011] IEHC 505, and as approved by Laffoy J. in Tekenable Limited v. Morrissey & ors [2012] IEHC 505, somewhat different considerations may apply in cases where the interlocutory application will, to use language which I used in Diamond and which Laffoy J. cited in Tekenable "turn on aspects of the merits of the case which are based on the facts".  It is true that both of those cases concerned the costs of an interlocutory injunction.  One of the issues which, of course, arises on an application for an interlocutory injunction is as to whether the plaintiff has established a fair issue to be tried and, indeed, whether the defendant has established an arguable defence.  In many cases the argument for both plaintiff and defence on those questions is dependent on facts which will not be determined at the interlocutory stage save for the purposes of analysing whether the facts for which there is evidence give rise to an arguable case or an arguable defence.

3.5? However, the point made in Diamond is that those facts may well be the subject of detailed analysis at trial resulting in a definitive ruling as to where the true facts lie.  In substance a plaintiff may well secure an interlocutory injunction by putting forward evidence of facts which, if true, would give him an arguable case and by succeeding on the balance of convenience test thereafter.  However, if the facts on which the plaintiff's claim is predicated are rejected at trial, then the justice of the case may well lead to the conclusion that the interlocutory injunction was wrongly sought. ... ."

6. ACC v. Hanrahan was actually a case concerning an application for summary judgment, but Clarke J. observed that, by parity of reasoning, similar considerations arose to those arising in cases involving interlocutory injunctions. ?This is so because in such applications a defendant might put forward evidence of facts which, if established at trial, might well provide an arguable defence, but that evidence might then subsequently be rejected by a trial judge after careful analysis. ?In such circumstances he said, it may well not be just that the defendant who successfully resisted the application for summary judgment based on those " facts " should get the costs of the summary judgment motion. ?Clarke J. concluded therefore that in the majority of cases involving applications for summary judgment the costs of a summary judgment motion that is remitted to plenary hearing should either be remitted or become costs in the cause.

7. In my view, ACC v. Hanrahan does not avail the appellant, because there is a very significant difference between an application for a modular trial and cases involving applications for an interlocutory injunction or summary judgment. ?An application for a modular trial, if granted, merely advances the determination of an issue or issues that would in any event have to be determined at a full trial. ?It does not afford either party relief to which it may later be found they were not entitled, such as can arise in the case of the grant of an interlocutory injunction or the remittal to plenary hearing of a claim to which the defendant had no answer. ?The worst that may occur in the case of proceeding by way of a modular trial is that instead of saving court time and expense, as the applicant for such a trial usually claims will result from taking that course, it may have the opposite effect (as the appellant submits may occur in this case) and add to the time and expense required to bring the trial to a conclusion. ?This could occur, the appellant submits, if he is successful in the initial modular hearing, and a second module is required. ?In such circumstances, the appellant argues, it is inevitable that the two modules would take longer than a single module dealing with all liability issues. ?This is the height of the appellant's argument on the issue.

8. But should that occur, it does not follow that it is not possible now justly to decide the issue of the costs of this appeal, or indeed the costs of the application in the court below, as the appellant has argued. ?If it transpires that the costs of the proceedings are ultimately increased rather than reduced by reason of the modular trial, it will be open to the trial judge to address the issue by making such costs orders as are appropriate to ensure that it is the? party who sought the modular trial bears the burden of any additional expenses incurred by reason of the same.

9. Both the High Court and this Court on appeal have concluded that the determination of the two questions concerned by way of modular trial offers an opportunity for significant cost savings in the determination of two issues central to these proceedings.  If those issues are determined in the appellant's favour and if the appellant is ultimately successful in the proceedings as a whole, then, in the ordinary course, he may reasonably expect to recover an order for all of the costs incurred by him in prosecuting the proceedings.  So if, as he contends, his costs have been increased by reason of the mechanism of the modular trial, he should, all else being equal, obtain an order for the recovery of any additional costs so incurred.

10. If, on the other hand, the appellant is unsuccessful in the proceedings, his exposure to costs may well have been reduced by the determination of the issues to be determined by way of modular trial, by reason of the anticipated saving of time in the determination of those questions in this way. ?But even if not, and even if as the appellant appears to contend his costs may be unnecessarily increased by the modular trial, it will be open to the appellant to invite the trial judge to fashion a costs order that fairly allocates the burden of any additional costs unnecessarily incurred by reason of the same.

11. All of this was the case at the time that the appellant was invited to agree to a modular trial.  The appellant could have avoided the costs of this application, and appeal, by agreeing to the request for a modular trial when it was first made, without fearing any adverse costs implications by so doing. ?That being so, I am satisfied that it is possible justly to adjudicate upon the liability for costs incurred in connection with this appeal, and, since the respondent has been entirely successful in resisting the appeal, the appropriate order is that the appellant should discharge the costs incurred by the respondent in so doing.  It follows from this conclusion that there is no basis to interfere with the order for costs made by the High Court, i.e. that the appellant should discharge the respondent's costs incurred in the High Court for the motion.

12. Finally, the appellant also applied, in the alternative, for a stay in the event that this Court should make a costs order against him. ?The respondent raised no specific objection to this part of the appellant's submissions, and I am disposed to accede to this request given that if the appellant succeeds overall, the respondent will then clearly be indebted to the appellant in a far greater amount (both arising from any award as well as the costs of the substantive proceedings) than the appellant may owe the respondent by reason of the costs now ordered to be paid by the appellant. ?Therefore, the order to be made consequent on this ruling shall be stayed pending the determination of the substantive proceedings.

13. Since this ruling is being delivered remotely, Whelan J. and Hyland J. have authorised me to confirm their agreement with the same.

Result:     Costs to the Respondent.

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