Jackson Way Properties Limited v Dun Laoghaire Rathdown County Council

UNAPPROVED NO REDACTION NEEDED THE COURT OF APPEAL CIVIL Court of Appeal Record Number: 2015/592 High Court Record Number: 2008/648SP Neutral Citation: [2026] IECA 72 Whelan J. Butler J. Hyland J. BETWEEN/ JACKSON WAY PROPERTIES LTD APPELLANT - AND - DÚN LAOGHAIRE RATHDOWN COUNTY COUNCIL DEFENDANT/ RESPONDENT COSTS RULING of Ms. Justice Butler of the 29th day of April 2026 Introduction 1. In a judgment delivered on 11th February 2026 ([2026] IECA 11 Butler J; Whelan and Hyland JJ. concurring) the appellant’s appeal was dismissed. At paragraph 90 of that judgment, it was indicated that the court’s preliminary view was that the respondent should be entitled to an order for the costs of the appeal. It was noted that the appellant had succeeded on one ground of appeal but that no additional costs had been incurred by reason of this ground being resisted by DLRCC. At paragraph 91 of the judgment the court indicated that it was not disposed to granting a stay on the payment of those costs until the determination of the substantive proceedings. 2. As regards both issues, the appellant was given liberty to file written submissions in the event that it wished to contend for a different order. The appellant did so and DLRCC filed responding submissions. Having considered those submissions, this is the court’s ruling on the issue of costs and on whether a stay should be granted. 3. To briefly recap, the appeal concerned the refusal by the High Court to direct part payment of an award made by arbitrator in 2003 in respect of the compulsory acquisition of the appellant’s land by DLRCC. Central to the dispute between the parties was whether the appellant could prove the unencumbered freehold title to the lands on which the arbitrator’s award was based. In separate proceedings, Jackson Way Properties v. Smith [2023] IECA 185, decided after the date of the High Court judgment from which this appeal was taken, this court determined that the appellant’s lands were subject to a restrictive covenant in favour of lands owned by a third party which precluded the erection of any building on the appellant’s lands. The court declined to order part payment of any portion of the arbitrator’s award in circumstances where DLRCC’s defence to the appellant’s substantive proceedings seeking to enforce that award is to contend that the entire award is unenforceable because the appellant is unable to prove the title it claimed. Costs – Section 169(1)(b) 4. Under section 169(1) of the Legal Services Regulation Act 2015 a party who is entirely successful in civil proceedings is entitled to costs against the unsuccessful party unless 2 the court orders otherwise “having regard to the particular nature and circumstances of the case and the conduct of the proceedings by the parties”. There follows a list of matters to which the court may have regard in deciding whether to depart from the normal rule that costs should follow the event. In its written legal submissions, the appellant relies on two of these, namely sub-paragraph (a) the conduct of the parties and sub-paragraph (b) whether it was reasonable for it to raise, pursue or contest one more of the issues in the proceedings. 5. The appellant argues that the point on which it succeeded, namely whether the application for part payment of an arbitral award should be treated as being equivalent to an interlocutory injunction and subject to the test applicable to the making of a mandatory interlocutory order, was an important legal characterisation point. Consequently, it contends that pursuant to sub-paragraph (b) it was reasonable for it to pursue that point. 6. Clearly it was not unreasonable for the appellant to have raised and pursued a point on which it succeeded. However, under section 169(1) the main consideration in relation to costs is whether a party has been entirely successful or unsuccessful in the proceedings. In this case, notwithstanding the Court of Appeal’s acceptance that the High Court erred in treating an application for part payment of an arbitral award as a mandatory interlocutory injunction to which a particular legal test applied, the appellant did not succeed in making out its case even when the alternative (and less stringent) test for which it contended was applied. Consequently, success on that limited procedural point was of no real benefit to the appellant and did not alter the outcome of the appeal. 7. Further, as DLRCC correctly points out, the hearing of this appeal took place on a single day. The issue on which the appellant succeeded was a relatively minor part of the 3 overall argument and the fact the point was disputed by DLRCC did not add materially to the length of the hearing or the costs of the appeal. This is an important consideration. 8. Section 169(1)(b) allows a court to exercise discretion in the framing or apportionment of a costs order where issues have been raised or opposed unreasonably, particularly where such issues have a material impact on costs of the proceedings. It is likely to be particularly relevant where there has been a lengthy trial lasting a number of days or weeks as the costs of proceedings increase each day the matter is at hearing. Reliance on section 169(1)(b) would be especially appropriate where, for example, the successful party had raised a number of difficult issues which involved lengthy pre-trial procedures or which extended the hearing of the proceedings and had not succeeded in those issues despite being successful overall in the sense of obtaining or opposing the relief sought. In those circumstances it could be unfair for the losing party to be visited with the additional costs arising from the litigation of those issues. 9. Whilst this is not the only circumstance in which section 169(1)(b) might be relevant, the mere fact that a point is reasonably raised and pursued does not provide an exemption from all or any of the costs of the proceedings where the party raising the point has otherwise been unsuccessful. It should be borne in mind that the overarching principle in s.169(1) is that a party who has been entirely successful is entitled to their costs. Attempting to parse a judgment so as to identify the individual points which each party won or lost in the expectation that this will have a consequent impact on costs would undermine the general nature of the ‘costs follow the event’ principle to which statutory effect is given by s.169(1). Whilst the court undoubtedly has a discretion and the extent to which it was reasonable for parties to pursue or oppose particular issues may have a bearing on the exercise of that discretion, s.169(1)(b) should not be applied in a manner which is inconsistent with the general principle by automatically effecting 4 a reduction in the costs to which a successful party is otherwise entitled because that party did not succeed in all of its arguments. Costs – Section 169(1)(a) 10. The second matter on which the appellant relies pursuant to subparagraph (a) is the ‘conduct’ of DLRCC. There are 3 strands of conduct referred to. The first is that the lands were acquired over 25 years ago and, to date, the appellant has not received any of the compensation to which it is legally and constitutionally entitled. The second is that in 2002 DLRCC attempted to prevent the arbitration proceeding and was criticised in the Supreme Court for doing so. The third is that DLRCC has not made any offer of part payment to the appellant during that period. In contrast, the appellant characterises its attempt to secure a part payment as reasonable and the matters raised by it as genuinely arguable legal points. 11. The last point can be readily dismissed. In circumstances where the appellant has not been able to prove the title on which the arbitrator’s award is based, DLRCC disputes its obligation to make any payment on foot of that award. It cannot be characterised as acting unreasonably in not making an offer of part payment of an award when it is disputing the enforceability of the entire award. 12. In response, DLRCC makes two main arguments in its submissions. The first is that non-payment of the arbitrator’s award since 2003 has resulted from the failure of the appellant to prove the title upon which that award is based. This is not the fault of DLRCC. That is undoubtedly correct. Proof of title is an essential prerequisite to the entitlement to be paid compensation and the inability of the appellant to prove its title to date is not referable to anything that could reasonably be characterised as the ‘conduct’ of DLRCC. 5 13. The second is that DLRCC’s conduct in 2002 does not relate to these proceedings. It predates both the arbitration, the award and the appellant’s attempt to enforce the award. Again, this is correct. The appellant argues that under section 169(1)(a), conduct prior to the institution of proceedings may be taken into account. This is undoubtedly so as sub-paragraph (a) expressly refers to conduct “before” the proceedings. Indeed, circumstances can be readily envisaged in which the conduct of one or both parties in the lead up to the institution of proceedings is directly relevant, either because it gives rise to the need for the proceedings in the first place or because it impacts adversely (in costs terms) on the manner in which those proceedings are framed and run. However, the entitlement of the court to take account of the conduct of the parties before the proceedings does not mean that the court should conduct a historical review of the parties’ behaviour unrelated to the proceedings themselves. In this regard it is notable that the conduct complained of concluded in 2002 and these proceedings were not issued until 2008. 14. Further, insofar as the Supreme Court was critical of DLRCC in 2002, that criticism was expressed in a judgment refusing DLRCC injunctive relief to prevent the arbitration taking place. The Supreme Court had jurisdiction to make whatever costs order it thought appropriate in respect of these proceedings. If it made an order for costs against DLRCC, then it seems unfair that DLRCC be penalised twice for having lost that application – i.e. to be required to pay the costs of the proceedings it lost and then to be denied some or all of the costs in the proceedings it won because of its ‘conduct’ in taking the earlier proceedings. On the other hand, if no order for costs was made in the 2002 proceedings, it seems inappropriate for this court to second guess the decision of the Supreme Court by relying on comments it made at that time as indicative 6 of ‘conduct’ on the part of DLRCC which would justify denial of some or all of its costs in separate proceedings nearly a quarter of a century later. 15. For these reasons the court remains of the view that the costs order proposed in paragraph 90 of the judgment, i.e. an order for costs in favour of the respondent, is the appropriate order to make. A Stay on the Costs Order? 16. A separate question arises as to whether the execution of the costs order should be stayed. The appellant has focused its application on payment of the costs and appears to accept that it would be appropriate to permit DLRCC to take the necessary steps to have the costs adjudicated. Presumably this is because its main objective is to facilitate the setting-off of any costs awarded in this appeal against the award of compensation to which it will ultimately be entitled for the acquisition of its land. The appellant posits two alternative time frames for any such stay. The first is until the determination of these proceedings and the second is until the determination of the separate proceedings under section 50 of the Land and Conveyancing Law Reform Act 2009 which the appellant has instituted against the third-party beneficiary of the restrictive covenant. 17. DLRCC does not dispute the jurisdiction of the court to order a stay whether that be pursuant to the inherent jurisdiction of the court, section 21 of the Enforcement of Court Orders Act 1926 (relied on by the appellant) or Order 42, rule 28 of the Rules of the Superior Courts. However, it opposes the application on various grounds. It contends that the granting of a stay would amount to a long-term postponement of its entitlement to recover the costs it has been awarded. It is difficult to disagree with this contention in circumstances where a large number of significant legal issues remain in dispute. 18. The appellant currently has proceedings in being against a third party pursuant to section 50 of the 2009 Act seeking to clear the restrictive covenant from the title to its 7 property. Even if the appellant succeeds in that case, there remains a significant and complex legal issue as to the retrospective effect of an order made under section 50 in circumstances where that section was not in being at the date of either the Notice to Treat or the arbitrator’s award. Given the pace with which the proceedings have progressed to date and the fact that it is by no means clear that the determination of the section 50 proceedings will produce an outcome which will result in the mandatory payment of an award without a further arbitration, the time at which the award might ultimately be paid is both uncertain and potentially quite far away. 19. Insofar as a stay is sought until the determination of these proceedings, it should be acknowledged that the entire basis upon which these proceedings were taken was substantially undermined by the judgment in Jackson Way Properties v. Smith (above). Consequently, it is likely that these proceedings will require substantial amendment to be meaningfully progressed to a conclusion. It is also likely that any such amendment will not be applied for until the section 50 proceedings have concluded as this will probably have a bearing on the way the case needs to be framed. Consequently, similar considerations to those discussed in the preceding paragraph apply. 20. The appellant did not specifically address where the interests of justice might lie regarding the grant or refusal of a stay. DLRCC points out that the appellant does not assert that it faces any particular financial difficulties or is otherwise unable to pay the costs of the proceedings in advance of receipt of the arbitrator’s award. Consequently, it urges the court to exercise its discretion to refuse a stay in all the circumstances. 21. The parties are agreed that the grant or refusal of a stay is ultimately a discretionary matter for the court. On the facts, it is difficult to see why such an undoubted discretion should be exercised in favour of the granting of a stay. There is significant uncertainty surrounding the future progression of these and the related proceedings. Further, the 8 pace with which the litigation has been conducted to date militates against a stay on the enforcement of the costs order as this will amount to a long-term postponement of the recovery of costs to which the successful respondent is entitled. For these reasons, the court refuses the appellant’s application for a stay on the execution of the costs order. 22. Consequently, it is unnecessary for the court to address the potentially difficult issue of whether it has inherent jurisdiction to grant a stay on the execution of the costs order in favour of the respondent in this case to facilitate the appellant’s proceedings against a third party. Final orders will be drawn up in the terms proposed at paragraphs 90 and 91 of the court’s original judgment. 9