O’Reilly -v- William Neville & Sons Construction – High Court: 2018/228

On the 18th of January 2018, Mr. Justice Donald Binchy delivered a Judgement in the above case. The case involved an Order for specific performance and building rectifications works which was successful and an Order was made in favour of the Plaintiffs on the 31st July 2017.

The matter of interest in the recent January Judgement for Defendants/Insurers/Indemnifiers is in regard to the costs implications in matters when Plaintiffs will not settle when a reasonable or fair offer is made.

In the costs application, the Plaintiff’s Counsel sought a full Order for costs on the basis that the usual rule “costs follow the event” applied. That is the general principle as per previous Supreme Court authorities.

The Defendants submitted that offers had been made in writing to address the wrongs claimed by the Plaintiffs. These offers were made at the commencement of proceedings and when the Defence was delivered. The ultimate offer was made on the 18th of February 2016, setting out compensation and a mechanism to rectify building works. This offer was made nine months before the matter came to Trial and with the benefit of expert reports.

Mr. Justice Binchy found this letter of offer was “a commendable offer” but accepted it could not address every issue of dispute between the parties. The determination that followed found that the Defendants should be awarded all costs in the proceedings from the 18th of February 2016 onwards. The Plaintiffs were entitled to an Order for costs up to that date.

This finding has implications in respect of the conduct and reasonableness of Plaintiffs in pursuing cases to Hearing where such offers have been made. A Plaintiff does not enjoy the blanket comfort of achieving a full Order for costs in such circumstances on the basis of the success of the case.

Mary Byrne

Partner – O’Brien Lynam Solicitors