Higgins v Coleman and Anor

THE HIGH COURT [2026] IEHC 144 [Record No. 2022/1910 P] BETWEEN JOSEPHINE HIGGINS PLAINTIFF AND RICHARD COLEMAN AND MOTOR INSURERS’ BUREAU OF IRELAND DEFENDANTS EX TEMPORE JUDGMENT delivered by Mr. Justice Micheál O’Higgins on 23rd January 2026 Introduction 1. This is my ex tempore judgment on the plaintiff’s application for costs in these personal injury proceedings. I delivered judgment in the substantive proceedings before Christmas on the 15th of December 2025. The hearing took place over five days, and liability and quantum were fully contested by the defendants. In total, there were some 11 witnesses called. The main issue in this costs hearing concerns how the court should reflect in the costs order the findings made by the court on the plaintiff’s claim for loss of earnings. Submissions of the parties 1 2. Counsel for the defendants, Mr. Lucey SC, submits that approximately two days of the five-day hearing were taken up with evidence relating to the loss of earnings claim. The relevant witnesses were Mr. and Mrs. Higgins and the expert witness called by the plaintiff, whose report and methodology were found to be flawed and, to put it mildly, unsatisfactory. Counsel relied upon several paragraphs of the court’s judgment where the loss of earnings claim came in for particular criticism. Mr. Lucey relies on section 169(1) of the Legal Services Regulation Act 2015 (the “2015 Act”) and the references to the “nature and circumstances of the case” and “the conduct of the proceedings by the parties”. He relies in particular on sub- paras. (a) to (d) of section 169(1). 3. Pointing to the findings of the court to only allow €60,000 for loss of earnings where the overall claim was for €1.752 million, of which €1.4 million was claimed for loss of earnings and €342,602 for loss of capital appreciation of the properties, Mr. Lucey submits that the defendants were entirely justified in contesting this excessive claim, which was clearly found not to have been evidentially sustained. The extent of the claim allowed was for four years past loss of earnings on a reduced basis equivalent to minimum wage figures with nothing allowed for future losses or for capital losses. 4. It was necessary for the defendants to cross-examine the plaintiff’s witnesses extensively to, it is urged, expose and deconstruct the claim advanced, and this exercise undoubtedly lengthened the trial. Counsel submits that, in the overall circumstances of the case, including the almost total collapse of the claim as mounted on foot of the accountant’s report, the court should award to the defendants two days’ costs of the hearing. This is necessary, says the defendants, to reflect the court’s expressed criticisms and misgivings about the wholly unrealistic and excessive loss of earnings claim that was advanced. 5. In reply, Senior Counsel for the plaintiff, Mr. Creed, invites the court to, as it were, step back and assess the outcome of the proceedings in the round. These road traffic proceedings 2 were contested in full, both on the issues of liability and also on quantum of damages for the personal injuries suffered by the plaintiff. The defendants could have, but did not, concede liability. It was contested in full, and the court ultimately preferred the evidence of the plaintiff and her husband over that of the first defendant. Moreover, much of the hearing was legitimately taken up with an exploration of the plaintiff’s injuries. Mr. Creed urges that, viewing matters in the round, the plaintiff was fully successful within the meaning of section 169 of the 2015 Act, albeit the court has reduced considerably one element of the financial losses which should not, submits the plaintiff, drown out the other substantive findings made by the court following a fully contested hearing. 6. Counsel refers to the conduct of the proceedings as referenced in the legislation and submits that the proceedings were appropriately conducted by the plaintiff who had to come to court to vindicate her position. There was no improper conduct by the plaintiff as found by the court. As noted at para. 109 of the court’s judgment, no application was or could have been made by the defendants to dismiss the proceedings under section 26 of the Civil Liability and Courts Act 2004. The defendants came nowhere near meeting the high threshold for making a section 26 order. It was never suggested that the high threshold for making a dismiss order pursuant to section 26 was met or was remotely in play. Counsel relied on the decision of the Court of Appeal (Mr. Justice Collins) in O’Sullivan v. Brozda [2022] IECA 163, where Collins J. emphasised the high threshold to be met by a defendant seeking a section 26 order and the reality that the reputational impact of a finding that a plaintiff knowingly gave false or misleading evidence had equivalence with a finding of civil fraud. 7. In conclusion, it was submitted that the justice of the case would be met by granting the costs of the proceedings to the plaintiff to reflect her success in the action and allowing an adjustment of the costs order, if necessary, to reflect that the plaintiff was not wholly successful in the loss of earnings element of the claim. 3 8. I propose in this costs ruling to apply the principles on costs identified by Mr. Justice Murray for the Court of Appeal in Chubb European Group SE v. Health Insurance Authority [2022] 2 IR 734 where those principles are outlined in para. 19. I am not going to reprise them in full, but I will mention the main ones as have a bearing on the issues in the case before me: “(a) The general discretion of the court in connection with the ordering of costs is preserved… (c) In a case where the party seeking costs has been “entirely successful in those proceedings”, the party so succeeding “is entitled” to an award of costs against the unsuccessful party unless the court orders otherwise… (d) In determining whether to “order otherwise”, the court should have regard to the “nature and circumstances of the case” and “the conduct of the proceedings by the parties”… (e) Further, the matters to which the court shall have regard in deciding whether to so order otherwise 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… (f) The court, in the exercise of its discretion may also make an order that where a party is “partially successful” in the proceedings, it should recover costs relating to the successful element… of the proceedings… (g) Even where a party has not been “entirely successful” the court should still have regard to the matters referred to in s.169(1)(a)-(g) when deciding whether to award costs.” 9. I will address three main issues in my discussion of the parties’ respective submissions: 1. Should the normal default rule of granting costs to the successful party be departed from here? 4 2. If a departure from the default rule is warranted, should this be limited to reducing the plaintiff’s costs or should it sound in a positive award of costs in favour of the defendants? 3. Is there a way of tailoring the costs order which would sufficiently reflect the court’s judgment and the justice of the case? In a sense, issue 3 is the only issue in any costs decision, really, but in order to get to issue 3, it is necessary to consider and decide issues 1 and 2. Issue 1: Should the normal default rule of granting costs to the successful party be departed from? 10. Whether one describes the loss of earnings claim as a separate event for costs purposes, or whether the outcome of the loss of earnings claim takes the plaintiff out of the category of being “entirely successful” for the purpose of section 169, it seems to me that one way or the other, the unusual collapse of the plaintiff’s loss of earnings claim has to be reflected in a specific way in the final costs outcome. It was undoubtedly legitimate and justified for the defendants to contest the inflated loss of earnings claim mounted on foot of the accountant’s flawed report. Section 169(1)(b) expressly permits the court to have regard to such a factor when considering whether the normal default rule should be departed from. 11. This factor is also relevant under the statutory heading relating to the “conduct of the proceedings by the parties”. However, it seems to me the court should bear in mind that that phrase covers a broad spectrum and at one end comes cases where parties will have been found to have given knowingly false and misleading evidence, sufficient to warrant, for instance, a section 26 dismiss order. We are not in that territory here and no submission was made by the defendants to suggest that we are. I also take into account that while the loss of earnings claim was found to be seriously flawed and excessive, it was not disallowed in its entirety. Aspects 5 of the evidence of the plaintiff and the accountant pertaining to the loss of earnings were deemed helpful and reliable. In any event, coming back to the first issue, I am satisfied that the court should depart from the normal default rule of awarding full costs to the successful plaintiff in the action. Issue 2: If a departure from the default rule is warranted, should this be limited to reducing the plaintiff’s costs or should it sound in a positive award of costs in favour of the defendants? 12. This issue is considered at a level of principle in Delany and McGrath on Civil Procedure, 5th Ed., (2023) at paras. 24-31 to 24-33 where the authors state the following: “[24-31] In Veolia Water UK plc v Fingal County Council (No. 2) [2007] 2 IR 81, Clarke J suggested that: …where it is clear that the length of the trial of whatever issues were before the court was increased by virtue of the raising of issues upon which the party who was successful in an overall sense, failed, then the court should… award to the successful party an amount of costs which reflects not only that that party should be refused costs attributable to any such elongated hearing, but should also have to, in effect, pay costs to the unsuccessful party in relation to whatever portion of the hearing the court assesses was attributable to the issue upon which the winning party was unsuccessful. In general, that is done by a judge calculating the length of time that was spent on the issue on which the successful party was unsuccessful and making an appropriate deduction in terms of days from the costs awarded. Thus, the judge may make an order for the costs of proceedings but limited to a specified number of days. 6 [24-32] In considering the Veolia principles in Dardis v Poplovka [2017] IEHC 249, Barr J stated that the approach of Clarke J in that case was a logical and sensible approach to the question of whether it is appropriate to award the defendant some of his costs in dealing with a discrete issue even where the plaintiff has been largely successful in his claim. He stated that just because a judge decides in favour of the defendant on a particular issue, this does not mean that the plaintiff should necessarily be penalised in costs as long as the claim made by the latter is reasonably stateable on the evidence. However, where a plaintiff puts forward a distinct claim on which he loses completely, such as in the matter before him, which involved putting forward what he characterised as a totally unsustainable loss of earnings claim, then it may be appropriate to deny the plaintiff his costs for the time spent at the hearing dealing with the discrete issue on which he has lost. He summarised his views in the following terms: It seems to me that the distinction between these two levels is essentially one of degree. If a plaintiff had a stateable case on the issue, he should not be penalised just because the trial judge found in favour of the defendant. However, if the plaintiff has put forward a particular head of claim, that was ultimately held to be unstateable, then it would be appropriate that he should be deprived of his costs in respect of the time spent trying to establish such head of claim at the trial. Thus in order for the plaintiff to be deprived of his costs, there must be a discrete issue which the plaintiff loses completely and the hearing of that issue must have led to a definite elongation of the hearing of the action.” 13. Applying Mr. Justice Barr’s approach here, the following can be said of the present case before me. First, the plaintiff’s loss of earnings claim was not held to be unstatable in its entirety, though the methodology of the claim and its grossly excessive extent were criticised in the court’s judgment. The loss of earnings ‘set piece’, as it were, was effectively dealt with 7 as a discrete issue and did, in my view, to an extent, elongate the trial. It is difficult to be precise about how much trial time was unnecessarily taken up with the issue because some aspects of the earnings and past losses evidence needed to be explored anyway, and not all of the claim was found to be illegitimate or grossly excessive. 14. I also take into account that, to an extent, the plaintiff has already suffered a self- inflicted penalty on the loss of earnings front because I record at para. 106 of the judgment that it is likely that the actual value of the work done by the plaintiff pre-accident would have been greater than the figure actually allowed at the end of the day for past losses. 15. I also take into account the point made in the case law, which was quite properly acknowledged by counsel for the defendants here, that it is not a given in any sense that the Veolia line of jurisprudence should have application to personal injury litigation, which should not be treated in an identical fashion to commercial disputes or other, more complex litigation involving modular hearings. 16. Finally, under this heading, it seems to me the court should keep to the forefront of its mind the overall run and outcome of the case beyond the issue of loss of earnings, and consider the plaintiff’s success on the core issues, other than the loss of earnings aspect, and the important finding that the plaintiff was entitled to substantial damages to reflect the major impact which the injuries have had on her personality and overall enjoyment of life. 17. For these reasons, with respect to issue number 2, I find that it would be disproportionate to make a positive costs order in favour of the defendants on the loss of earnings issue. Issue 3: Is there a way of tailoring the costs order which would sufficiently reflect the court’s judgment and the justice of the case? 8 18. Turning then to the final issue, the court is required to, if it can, select an appropriate costs order tailored to the individual circumstances of the case and reflecting the findings of the court in a manner that is fair to both sides. It seems to me that the best way of doing this is to attempt to list the predominant features of the case that may have a bearing on the costs calculus: 1. The plaintiff succeeded in obtaining a substantial award of damages in the sum of €170,564. As recorded in para. 120 of the judgment, the total figure was broken down as follows: • €60,000 damages for past loss of earnings; • €75,000 damages in respect of her psychiatric injuries; • €22,000 damages uplift in respect of her significant back injuries (having deducted one third for the overlap and “roll-up” factor); and • €13,564 in respect of other special damages. This made a total of €170,564. 2. The plaintiff had to come to court to secure this substantial award, and it is accepted that, subject to the dispute over loss of earnings, she is entitled to recover her costs of the proceedings commensurate with this sum. 3. The issue of liability was fully contested at all times by the defendants and the plaintiff was wholly successful on this issue. 4. Leaving aside the court’s significant misgivings about the loss of earnings, it was legitimate and reasonable for the plaintiff to seek damages for all elements of her injury profile. The fact that the shoulder and Achilles injury were adjudged not to be attributable to the index accident due to the later onset of those injuries does not take from the legitimacy of the claim. 9 5. The court has already reflected in part the court’s concerns and misgivings about the excessive loss of earnings claim at para. 106 of the judgment, when indicating that it was likely that the actual value of the work done by the plaintiff pre-accident would have been greater than the figures ultimately allowed for past losses. To an extent, therefore, the plaintiff’s over-reach has already been marked with a financial sting. 6. On the core issues, the plaintiff was found to be a reasonable witness and no findings were made that she knowingly gave false or misleading evidence. 19. In all the circumstances of the case, and bearing those overarching features in mind, I propose to make three adjustments to what might be said to be the normal default situation where a plaintiff has been successful in an action for personal injuries. 20. Firstly, I hold that the plaintiff is entitled to the costs of a four-day hearing to include reserved costs. In other words, I am disallowing one full day’s costs. 21. Secondly, I will disallow any costs associated with the preparation of the accountancy report, which was the subject of the admissibility dispute during the hearing. 22. Thirdly, I will make no order for costs with respect to the hearing on costs that took place last Wednesday. I will also make an order for adjudication of the plaintiff’s costs to be adjudicated upon in default of agreement between the parties. And that is the order that I propose to make. Signed: Micheál O’Higgins Appearances: Tom Creed SC and Lorraine O’Sullivan SC instructed by Martin A. Harvey & Co. Solicitors for the plaintiff. John Lucey SC and Cian Cotter BL instructed by TJ Hegarty Solicitors LLP for the defendants. 10