Webster and Anor v Meenacloghspar [Wind] Limited, Shorten and Anor v Meenacloghspar [Wind] Limited [No. 5]

THE HIGH COURT [2026] IEHC 155 Record No: 2018/8457P BETWEEN MARGARET WEBSTER AND KEITH ROLLO PLAINTIFFS AND MEENACLOGHSPAR (WIND) LIMITED DEFENDANT AND Record No: 2018/ 8458P ROSS SHORTEN AND JOAN CARTY PLAINTIFFS AND MEENACLOGHSPAR (WIND) LIMITED DEFENDANT JUDGMENT of Ms. Justice Emily Egan delivered on the 11th day of March 2026 Introduction 1. In my previous judgments in these proceedings, I found that the Wind Turbine Noise (WTN) from one of the two turbines operated by the defendant (T2) caused a nuisance to the plaintiffs during night hours and quiet waking hours, and that the plaintiffs were entitled to an injunction to abate this nuisance, together with damages. In a separate judgment of today’s date, I have determined the defendant’s application for a stay on all orders pending its intended appeal. This judgment concerns the two remaining issues in these proceedings: costs and the plaintiffs’ application for an order for payment out of their costs pending the defendant’s appeal. I will consider each in turn. 2 Relevant legal principles in relation to costs 2. Costs are governed by s. 168 and s. 169 of the Legal Services Regulation Act 2015(“s. 168” and “s. 169” respectively) and Order 99 of the Superior Court Rules as amended (“O. 99”), as interpreted and applied by the principal judicial authorities opened to me by the parties, in particular, Chubb European Group SE v. Health Insurance Authority [2022] 2 IR 734 (“Chubb”), Higgins v. Irish Aviation Authority [2020] IECA 277;[2022] IESC 45 (“Higgins”), Word Prefect Translation Services v. Minister for Public Expenditure [2023] IECA 189 (“Word Perfect”) and ESB v. Good [2025] IESC 40 (“Good”). 3. I summarise these key principles below: I. In considering the awarding of costs of any action the court should “have regard” to the provisions of s. 169(1) (O.99, r.3 (1)). II. The general discretion of the court in connection with the ordering of costs is preserved (s. 168(1) and O.99, r.2 (1)). III. Pursuant to s. 169(1), the first issue to consider is whether either party has been “entirely successful” in the proceedings or whether, on the other hand, each party has been “partially successful”. (s. 169(1) and s. 168 (2)(d)) IV. This in turn determines where the burden lies in deciding how costs should be allocated. In a case where the party seeking costs has been “entirely successful”, the party so succeeding “is entitled” to an award of costs against the unsuccessful party unless the court considered that there is a reason not to order them V. This prima facie entitlement to costs is limited to a party who is “entirely successful” in the proceedings (s. 169(1)). A party who only succeeds partially may obtain an order for costs in respect of the successful “element or elements” of its claim if, having regard inter alia to the criteria specified in s.169(1), it is appropriate to award them. VI. In Higgins, Murray J. stated that in considering whether one party or another has been “entirely successful”, the court should take the pragmatic approach identified by Simons J. in Náisiúnta Leictreach Contraitheoir Eireann v. The Labour Court [2020] IEHC 342 (“Náisiúnta Leictreach”), and look beyond the overall result of the case and “consider whether the proceedings involved separate and distinct issues” which might be characterised as individual “events”. Where a party obtains the relief it claimed but has failed to prevail on a distinct “event” or issue in the action on which it chose to base its claim, it would therefore be difficult to see how it can be said to have been “entirely successful”. It would be particularly difficult to see how a party can be said to have been “entirely successful” where, as in Chubb, they have succeeded overall on a narrow point but have failed on a central point in the proceedings or on an issue that occupied a substantial proportion of the hearing time. VII. In Good, the Supreme Court expressly reserved to another day further consideration of the approach just articulated. Thus, it observed that difficult questions may well arise for resolution in the future around how the court should proceed to ‘split’ costs in cases in which a party has succeeded in obtaining some relief but has lost some ‘issues’ in the course of so doing. The Supreme Court stated that questions would also arise in 3 determining how a court should go about determining whether a party has been ‘entirely successful’ as that term is used in s. 169 and as to: “if – as some of the cases have suggested – those criteria are to be fixed by reference to ‘issues’, what exactly an ‘issue’ is for that purpose. That exercise, when it falls to be addressed, will have to reflect the reality that a winning party often loses on some issues, and that it seems unlikely that the Oireachtas intended that once this occurs, the Court should be propelled into the process of interrogating a ‘balance sheet’ of ‘issues’ on which each side has won or lost.” The Supreme Court went on to quote Leggatt J.’s observation in Iraqi Civilians v. Ministry for Defence [2018] EWHC 690 (QB) 2 Costs LR 213, that the failure of a successful party on particular issues does not necessarily justify any reduction in costs and that the real question is whether there are “any big issues which have occupied a substantial amount of time and cost and were important in the proceedings on which the overall winner has lost”. This passage might suggest an interpretation of s. 169(1) which would define a party as “entirely successful” provided they have obtained relief which they would not have obtained without coming to court. This approach would echo that taken by MacMenamin J. on appeal to the Supreme Court in Higgins [2022] IESC 45. MacMenamin J. stated that the recast O. 99, read in conjunction with ss.168 and 169 of the 2015 Act, “closely reflect” the decision in Veolia Water UK Plc v. Fingal County Council (No 2) [2006] IEHC 240. However, the impression of neat overlap as between the Veolia principles and those under ss. 168/169 is then somewhat dispelled by the Supreme Court’s next paragraph in Good, which notes: “While that, broadly, reflects the approach adopted before the enactment of the LRSA under the jurisdiction recognised by the High Court in Veolia Water UK plc v. Fingal County Council (No. 2) [2006] IEHC 240, [2007] 2 IR 81, there are differences between the relevant English and Irish provisions following the enactment of the LSRA.” In Good, it was not necessary for the Supreme Court to explore these differences further. It seems clear though that winning the event-in the Veolia sense- and being “entirely successful” in the s. 169(1) sense are not necessarily the same thing. VIII. As stated at paras IV and V above, where a party is “entirely successful” all costs follow unless the court exercises its discretion to “order otherwise” having regard to the factors enumerated in s. 169(1)(a) to (g). As noted by Simons J. in Ryanair v. An Taoiseach [2020] IEHC 673, the criteria enumerated at subparagraphs (a) to (g) of subsection (1) “appear to be directed principally to … the conduct of the proceedings.” IX. Thus, in determining whether to “order otherwise” and decline to award an entirely successful party their costs, the court should “hav[e] regard” to the “particular nature and circumstances of the case” and to the conduct of the proceedings by the parties (s. 169(1)). X. The matters to which the court shall have regard in this regard include the conduct of the parties before and during the proceedings and the manner in which the parties 4 conducted all or part of their case (s. 169(1) (a) and (c)). The court will further have regard to whether a successful party exaggerated his or her claim (s. 169(1)(d)). XI. The court will also have regard to payments into court, settlement offers and mediation (s. 169(1) (e-g)). In Higgins, Murray J. noted where an appeal is brought only against the assessment of quantum of damages by the High Court, the facility for making offers of the kind referred to in s. 169(1)(f) and O. 99 r.3(2) can assume decisive importance in determining what order for costs is just. XII. The court will also have regard to whether it was reasonable for a party to raise, pursue or contest one or more issues (s. 169(b)). The wording here is important. It highlights the fact that the enquiry is not as to whether the issue or issues in question have been lost or won by one party or another. Rather, the enquiry is as to whether it was “reasonable” for the relevant party to have raised, pursued or contested the issue or issues in question. XIII. The use of the word “including” at s. 169(1) makes it clear that the factors listed are illustrative, rather than exhaustive. The court retains overall discretion and may also have regard to other matters of relevance to the particular nature and circumstances of the case or to the conduct of the proceedings that it considers of relevance. In my view, this might include consideration of whether, in relation to s. 169(1)(b) for example, the issue on which the partially successful party did not succeed materially added to the complexity, length, or costs of the proceedings. It may be relevant to consider whether the material that was opened and argued in relation to the unsuccessful issue was also relevant to other issues in the case. XIV. If a court orders that a party who is “entirely successful” in civil proceedings is not entitled to an award of costs against a party who is not successful in those proceedings, there are broadly three approaches that the court can adopt. At one end of the spectrum, the court may reduce the costs recoverable by the successful party below the full amount that would otherwise be payable by the losing party. The intermediate position is one in which no order for costs is made and where the parties are left to bear their own costs. At the other end of the spectrum, the court may award costs in favour of the losing party against the successful party, XV. If a court orders that a party who is “entirely successful” in civil proceedings is not entitled to an award of costs against a party who is not successful, then it shall give reasons for that order. XVI. As stated at para. V above, the court, in the exercise of its discretion, may also make an order that one or more parties who are “partially successful” in the proceedings should recover costs relating to “the successful element or elements of the proceedings” (s. 168 (2)(d)). XVII. In many cases the splitting of costs as between different issues and arguments is likely to create satellite applications around costs, which would not usually result in an economical use of court time and may involve parties incurring further costs arguing about costs. 5 XVIII. In determining whether a party was “entirely successful” (with a prima facie entitlement to recover all of their costs) or “partially successful” (with a potential entitlement to recover costs relating to the “successful element of elements of the proceedings” or more broadly), it is first necessary to consider whether any of the issues or “elements” identified are in substance “separate and distinct issue(s)” on which the party concerned prevailed or whether they are merely arguments or points that it won. Putting it slightly differently, one must distinguish between: • “separate and distinct issues” (per Murray J. in Higgins quoting Simons J. in Náisiúnta Leictreach), and • specific questions that fell for consideration in resolving the issues in the case rather than issues in the proceedings itself (per the Supreme Court in Good). The former may result in costs in favour of the party who “partially” succeeded on the relevant issue or “element”, whereas, usually, the latter would not. XIX. The distinction just identified at para. XVIII involves a consideration of inter alia, the centrality of the relevant issues, the time spent on each such issue both in absolute and relative terms. A “separate and distinct issue” as opposed to a mere argument or question falling for consideration would usually take up a defined proportion of court time, rather than being folded in to other issues. A de minimus issue is unlikely to suffice. XX. In Good, the Supreme Court observed that, where neither party has been “entirely successful”, but each has been “partially successful” neither is, therefore, entitled to their costs as of right but that the court has a discretion which it may exercise to reflect that partial success. Although this might suggest that the discretion to award costs to a partially successful party is limited to the points on which that party succeeded, the court’s discretion is not so narrow. As Murray J. noted in Higgins, having regard to the general discretion in s. 168(1) and O.99 r.2 a party who is “partially successful” but not “entirely successful” may still succeed in obtaining all of its costs in an appropriate case. The court may be so inclined when the party who was predominantly successful in the proceedings failed only on a narrow ground which did not take up much of the hearing time or did not go to the heart of the issues in the case. A fortiori the court retains its discretion, in an appropriate case, to award to a party who is only partially successful such proportion of their costs as appears just or to order that each side bear their own costs in relation to the relevant element. XXI. In exercising its discretion in the manner outlined above in respect of a party who has not been “entirely successful” the court should still have regard to the factors referred to in s. 169(1)(a)-(g) when deciding how to award costs (O.99, r.3) (Per Murray J. in Chubb). XXII. In calculating the costs attributable to the issues on which each party prevailed, the court should in a broad-brush manner allocate time as between the various issues. In this regard it is necessary to take note not merely of the time spent in court but also of the relevant pleadings, witness statements (if applicable) and written legal submissions, etc. 6 XXIII. In the exercise of its discretion, the court may order a party to pay a portion of a party's costs, costs from or until a specified date, or costs of particular steps in the proceedings (s. 168 (2)(a-c)). XXIV. It remains, as the Supreme Court acknowledged in Good, that difficult questions will arise around how the Court should proceed to “split” costs in cases in which a party has succeeded in obtaining some relief but has lost some ‘issues’ in the course of so doing. Where no party has been “entirely successful”, the essential task of the court is to frame a solution which does justice between the parties. XXV. In Higgins, Murray J. set out the four questions to be answered by the court when applying ss. 168 and 169 and O.99, r.3(1). (a) Has either party to the proceedings been ‘entirely successful’ in the case as that phrase is used in s.169(1)?; (b) If so, is there any reason why, having regard to the matters specified in s.169(1)(a) – (g), all of the costs should not be ordered in favour of that party?; (c) If neither party has been ‘entirely successful’ have one or more parties been ‘partially successful’ within the meaning of s.168(2)?; (d) If one or more parties have been ‘partially successful’ and having regard to the factors outlined in s.169(1)(a)-(g) should some of the costs be ordered in favour of the party or parties that were ‘partially successful’ and if so, what should those costs be? Parties’ submissions on costs Plaintiffs’ submissions 4. The plaintiffs in both sets of proceedings maintain that they were “entirely successful” because they have obtained the central relief sought namely the finding of nuisance and an injunction to prevent same. In coming to court, they have achieved something that they could not otherwise have achieved and the defendant’s resistance to their claim has been found to be entirely unmeritorious. 5. The plaintiffs submit that the object intended to be achieved by s.169(1) is realised by approaching the statutory provision as an extension of the Veolia principles to non-complex cases. This approach avoids the undesirable alternative of the court conducting a granular assessment of the proceedings and promotes a broad-brush assessment of success. 6. The requirement to take a broad-brush approach to the assessment of success is also evident in Connelly v. An Bord Pleanála [2018] IESC 36 (“Connelly”) . Although ss. 168/169 did not govern this case, the starting point for any consideration of costs must be the result of the case. Clarke C.J. stated that it was neither necessary nor appropriate to attempt to parse and analyse in detail all of the issues that were canvassed in the course of proceedings and identify the number of issues on which either party might be said to have succeeded. The plaintiffs argue that there is therefore no requirement for detailed analysis. Rather, the court should determine success in a holistic way. 7. As the plaintiffs were “entirely successful”, they argue that all of their costs follow unless the court exercises its discretion to “order otherwise” having regard to the factors 7 enumerated in s. 169(1). The plaintiffs maintain that none of the factors enumerated apply in this case. Therefore although they accept that the court has allowed the defendant the costs of the Websters Rollo’s application to amend the proceedings to include a personal injuries claim, the plaintiffs otherwise claim 100% of their costs in all 3 modules. Defendant’s submissions 8. For the reasons set out below, the defendant argues that the plaintiffs were only “partially successful” in the proceedings. Module 1 9. Regarding module 1, although it concedes that the plaintiffs succeeded on the noise and vibration nuisance claim, the defendant argues that they did not succeed in demonstrating that both turbines, T1 and T2, caused a nuisance. Nor was nuisance made out on a 24/7 basis. Rather, the court has found that only T2 poses a nuisance and, further, that this is confined to sensitive periods- namely quiet waking hours and night hours. 10. Separately, the defendant argues that the plaintiffs unduly lengthened the hearing of the nuisance issue. It argues that the plaintiffs exceeded their time estimates in relation to the direct evidence of their own witnesses and the cross-examination of the defendant’s witnesses. It submits that the plaintiffs acted unmeritoriously in running these proceedings at such duration which materially increased the costs. The defendant argues that this factor is of relevance under both s. 169(1)(a), and s. 169(1)(c). The defendant argues that taken globally the plaintiffs should recover no more than 70% of their costs in respect of the nuisance issues on which they prevailed in module 1. 11. The defendant also argues that the plaintiffs did not succeed on a number of issues in module 1, namely the shadow flicker nuisance claim, the negligence and constitutional claim, the section 160 claim and the personal injury claims of Ms. Webster and Mr. Rollo. The defendant submits that it was partially successful on these issues and is entitled to 100% of its costs in each respect. Module 2 12. The defendant accepts that this court found that the Webster Rollos had discharged the burden of proof as to their entitlement to injunctive relief. It nevertheless contends that, whilst the court ordered injunctive relief, it was not in the terms sought by the Webster Rollos, namely a full shutdown of T2 during sensitive periods. The defendant therefore submits that the court should only award the Webster Rollos 80% of their costs of module 2. 13. Separately, it argues that, because the Carty Shortens had sold their house in Ballyduff, Nettlefield (“NF”) in 2021, there was never any possibility of their being entitled to injunctive 8 relief. They ought not therefore have participated in module 2. There should be no order of costs in the Carty Shorten’s favour for module 2. Module 3 14. The defendant contends that the general damages awarded to all four plaintiffs were significantly less than that which the plaintiffs submitted should be awarded and in each respect was closer to that which the defendants had submitted should be awarded. The defendant therefore asserts that it should be awarded 50% of the costs of the assessment of general damages for each of the plaintiffs. 15. The defendant also notes that the court rejected Mr. Rollo’s past and future accommodation claims and maintains a claim for 100% of its costs of this issue. 16. The defendant further argues that, whilst the court awarded stigma damages in respect of HH to the Webster Rollos, same was on a narrower basis and in a lesser amount than sought. The defendant also correctly states that the NF property devaluation claim advanced by the Carty Shortens was based on the difference between (a) the construction, decoration and furnishing costs of NF and (b) its sale price. The court accepted the approach contended for by the defendant, that damages should be assessed as the difference between the market value of NF at the time of its sale (crystallised as its sale price) and its likely market value at that time in the absence of the WTN nuisance. The defendant argues that the court’s damages award for property devaluation of NF was significantly less than that sought by the Carty Shortens. In each of these several respects, the defendant submits that the court ought to make no order as to costs. 17. Further, the defendant notes that the court made no award to the Webster Rollos in respect of reinstatement costs of HH. It seeks 100% of its costs in respect of this issue. 18. Finally, as the court declined to award aggravated and exemplary damages to any of the four the plaintiffs, the defendant also seeks 100% of its costs in respect of this issue. Analysis and discussion (a) Has any party to the proceedings been ‘entirely successful’ in the case as that phrase is used in s.169(1)? 19. It cannot realistically be disputed that, in common parlance, the plaintiffs have been successful in these proceedings. They prevailed in establishing that T2 gave rise to WTN nuisance and in obtaining an order restricting its operation. The were also awarded damages under several heads of their respective claims. 20. Demonstrably the defendant was not entirely successful. The question which arises however is whether the plaintiffs were “entirely successful” within the meaning of s. 169. 21. In Higgins, Murray J. observed that neither the appellant nor the respondent had left the court with everything they sought to achieve. Neither party’s success was thus complete. Likewise, the four plaintiffs did not leave this court with everything they sought to achieve. They succeeded in establishing nuisance at sensitive periods. To a commensurate extent the defendant did not obtain what it sought to achieve in the defence of these central claims. 9 However, the four plaintiffs were not successful in their s. 160 application which could theoretically have resulted in the complete shutdown of the windfarm without the necessity of establishing nuisance. Nor did they establish breach of constitutional rights or negligence. In addition, the Webster Rollos did not establish an entitlement to general damages for personal injuries. Turning to module 2, the Webster Rollos were awarded an order directing the cessation of the nuisance as found. On the other hand, they did not persuade the court to order a complete shutdown of T2 during sensitive periods. At module 3, the four plaintiffs recovered general damages for nuisance, property devaluation, and stigma damages. However, the Webster Rollos did not recover Mr. Rollo’s accommodation costs or his reinstatement costs. None of the four plaintiffs were awarded aggravated or exemplary damages. 22. For reasons more fully explained below, I have concluded that the only clear-cut distinction between the issues arising at module 1 of the proceedings was as between the nuisance claim, the claim pursued under s. 160, and the claim by the Webster Rollos to damages for personal injury. All other issues were either (a) part of the presentation and defence of the plaintiffs’ nuisance claim (and of the defendant’s planning compliance defence thereto) or (b) even if arguably “separate and distinct”, immaterial in terms of costs. I have concluded that there were no such separate and distinct issues at module 2. At module 3, I have concluded that the only “separate and distinct” issues which merit costs consequences are Mr. Rollo’s unsuccessful claims to past and future accommodation and his claim to reinstatement costs, 23. As the issues outlined above (s. 160 and the personal injuries claim) were “separate and distinct issues” (in the sense discussed at para. XVIII above) on which the plaintiffs did not succeed, I am compelled to conclude that even as regards module 1 (and 2), none of the four plaintiffs were entirely successful in the sense in which that term is used in s. 169. Therefore, irrespective entirely of the factors specified in s.169 (1) (a)-(g) the plaintiffs are not automatically entitled to an order for their full costs either of the proceedings as a whole or the costs of module 1 (and 2) specifically. Likewise, at module 3, the Webster Rollos’ loss on the issues of past and future accommodation costs and reinstatement costs is to be reflected in the costs order (b) If neither party has been ‘entirely successful’ have one or more parties been ‘partially successful’ within the meaning of s.168(2)? 24. It logically follows that both the plaintiffs and the defendant have, to varying extents, been “partially successful,” within the meaning of s. 168(2). As the Supreme Court noted in Good, difficult questions arise as to the criteria by reference to which the court allocates costs where no party has been “entirely successful”. 25. Whilst the plaintiffs were only “partially successful” within the words of the statute, they were, on any common-sense metric, overwhelmingly successful on the central issue in the proceedings in establishing nuisance and their entitlement to an injunction and damages. 10 This was also the issue to which the vast majority of the pleadings, expert reports, oral evidence, and written submissions were devoted. It also took up the vast majority of the hearing time before this court at modules 1 and 2. On a more granular basis, my module 1 judgment breaks down the nuisance issue into 11 issues. The plaintiffs prevailed on each one of those issues. This must be reflected in the costs order for modules 1 and 2. Likewise, for reasons explained below, the plaintiffs are also entitled to an award of the bulk of their costs at module 3. (c) If one or more parties have been ‘partially successful’ and having regard to the factors outlined in s.169(1)(a)-(g) should some of the costs be ordered in favour of the party or parties that were ‘partially successful’ and if so, what should those costs be? 26. As indicated above, the defendant argues that it was successful in respect of certain issues at modules 1, 2 and 3, and this ought also to result in each respect in either no order as to costs or in an award of costs in its favour. 27. I will first consider whether the issues identified by the defendant are in substance “separate and distinct issues” (in the sense explained at para. XVIII above) and then set out my decision on costs in relation to each such issue. Module 1 Failure to establish at module 1 that T1 gave rise to nuisance and failure to establish that the WTN gave rise to nuisance on a 24/7 basis 28. I reject the defendant’s argument that this court’s liability finding ought to be fragmented in the manner alleged. Whilst the court did not find that T1 posed a nuisance to the plaintiffs, this issue was scarcely pursued at module 1 and was not pursued at all at modules 2 and 3. 29. Furthermore, no appreciable time was devoted during the course of module 1 to the contention that T1 gave rise to a separate WTN nuisance. Indeed, when the defendant was asked to identify what part of the evidence or argument concerned this issue, or how much court time this issue had occupied, it was unable to do so. 30. This court found that T2 posed a nuisance only during sensitive periods rather than on a 24/7/365 basis. However, in order to make this finding, it was necessary for the court to receive and assess the totality of the evidence advanced by the parties and their respective experts (in particular the acoustic experts). The evidence was a coherent, inter-related whole which cannot realistically be split up as between that evidence relating to the nature and impact of the WTN during sensitive hours and its nature and impact at other times. Shadow flicker 31. The complaint of shadow flicker was part of the nuisance claim. It was not a “separate and distinct issue”. 11 32. The shadow flicker issue did not materially increase the costs of the case. The plaintiffs presented limited evidence and argument on this issue. Same was presented, and indeed defended, in an efficient and cost-effective manner. The defendant’s shadow flicker report was submitted to the court with the consent of both parties. 33. It was reasonable, within the meaning of s.169 (1)(b), for the plaintiffs to raise this issue. Although I found that shadow flicker did not in and of itself give rise to actionable nuisance, I noted that same was amenable to a simple and inexpensive solution which the defendant should have actioned within a reasonable time of it being brought to its attention. Despite the annoyance that the shadow flicker posed to the plaintiffs, the defendant did not resolve it until well after this court’s module 1 judgment. This was unneighbourly. 34. I am not disposed to make any specific order for costs in relation to this issue. Negligence claim and constitutional claim 35. It is possible that the negligence or constitutional claim was a “separate and distinct issue”. However, it was advanced through legal argument only. This issue did not materially increase the costs of these proceedings. The defendant could not identify what, if any, time was spent on this issue, save perhaps for a short interval during closing legal submissions. The issue was also discussed in some short passages in the parties’ legal submissions. I am not disposed to make any specific order for costs in favour of the defendant in this regard. 36. Affording weight to the three issues just discussed and to which party prevailed on the arguments advanced in respect of each would not reflect the reality that, as the Supreme Court noted in Good, a winning party often loses on some issues. It seems unlikely that the Oireachtas intended that once this occurred the court should be propelled into interrogating a balance sheet of issues on which each side has won or lost. Section 160 application 37. In my module 1 judgment, I found that all four of the plaintiffs had failed to demonstrate that the defendant had acted in breach of conditions 1, 10 or 15 as alleged. 38. The discrete issue of whether the plaintiffs ought to obtain an order under s. 160 could not be characterised as a question which fell for consideration in the context of the nuisance issue. It was a “separate and distinct” issue that took up a definable and material proportion of the court time. 39. The overall costs of the module 1 trial were materially increased by the s. 160 issue. The evidence of the parties’ planning experts was directed almost exclusively towards this issue, upon which the plaintiffs who were, in the overall sense, successful, failed, and on which the defendant was partially successful. The evidence concerned was that of Ms. Mulcrone for the plaintiffs on 15th and 16th December 2022 (5 hours and 38 minutes) and Mr. Lawlor for the defendant on 18th and 19th April 2023 (3 hours and 19 minutes). 40. I view the legal and factual basis of the s. 160 application as having always been very weak (although not necessarily unstateable). I would therefore entertain some doubt as to 12 whether it was reasonable for the plaintiffs to have raised, pursued, and contested this issue within the meaning of s. 169(1)(b). None of the other factors in s. 169(1) appear to be of particular relevance. 41. I will award to the defendant the costs of the hearing of days of the plaintiffs’ and defendant’s planning experts (15th and 16th December 2022 and 18th and 19th April 2023). A similar approach should apply to any other discrete item of expenditure incurred solely in respect of the evidence of those witnesses, such as report fees or consultations with the planning experts in connection with their evidence on those days. 42. Some other limited intervals during the trial touched upon this issue-such as the cross- examination of Mr. Brazil and a limited portion of the parties’ oral legal submissions. Likewise, the parties joined issue on aspects of the s. 160 application in their pleadings and their written legal submissions. However, I must also acknowledge that both planning experts did give some evidence of either tangential or direct relevance to the nuisance issue. Therefore, taking a broad-brush approach, I will award the defendant its costs in relation to the evidence of the planning experts only and will make no further allowance (either against the plaintiffs or in favour of the defendant) in respect of any other witness or in respect of the pleadings or the written submissions of the parties on this issue. 43. For clarity, I will not award the defendant the costs of Mr. Lawlor’s second appearance before the court on 6th November 2023. This concerned the interpretation of an ambiguity in condition 15 of the planning permission, an issue on which the plaintiffs prevailed. Those costs are therefore awarded to the plaintiffs as part of the overall costs of the nuisance issue. Personal injuries claim 44. I have already made an order that the defendants are entitled to the costs of the Webster Rollo’s application to amend the proceedings to include a claim to damages for personal injuries. I will also make an order in favour of the defendant for the costs of the costs application in respect of this application to amend. 45. The defendant contends that it ought to also recover 100% of its costs associated with the defence of the personal injuries claim. 46. The question of whether the plaintiffs could make out a claim to damages for personal injuries arose at module 1 only. I am satisfied that, in general, it was not an organic component of the determination of liability for nuisance and was a “separate and distinct issue” 47. As it was necessary for both parties to call medical experts, the personal injuries claim took up a definable and appreciable proportion of the court time and materially increased the costs. Some of the oral testimony of Mr. Rollo and Ms. Webster also touched upon this issue (in particular the cross-examination). It was also the subject of argument in the parties’ written and oral legal submissions. 48. By way of reminder, the plaintiffs contended that both Ms. Webster and Mr. Rollo had suffered from a recognisable psychiatric injury and that same was caused by the WTN. The defendant accepted that Mr. Rollo had suffered from a recognisable psychiatric injury but disputed that 13 diagnosis in respect of Ms. Webster. I held with the defendant on this issue. The defendant also disputed that Mr. Rollo’s psychiatric injury had been caused by the WTN. I held with the plaintiffs on this issue. However, notwithstanding that, I ultimately determined that the plaintiffs were not entitled to advance a claim for personal injuries because same was not a reasonably foreseeable consequence of exposure to WTN. Therefore, although Mr. Rollo succeeded in satisfying the court as to certain elements of his personal injuries claim, it ultimately failed. In the circumstances, I must consider whether to accede to the defendant’s application for its costs of this issue or to make some other order. 49. First, it is worth recalling that s. 169(1)(b) requires me to consider not only whether a particular party won or lost a particular issue but also whether it was reasonable for the relevant party to raise, pursue, or contest the issue in question. In light of the contents of Professor Gournay’s report, it was, in my view, wholly reasonable for Mr. Rollo to seek to bring a claim for personal injuries. He had been diagnosed as having suffered a serious psychiatric injury as a consequence of the WTN, which was borne out by this court’s judgment. 50. The defendant points to Clarke C.J.’s observation in Connelly, that it is important to discourage parties from “throwing the kitchen sink into every case” increasing both costs and time. I accept that at least part of the purpose of s. 169 (1)(b) is to discourage parties from raising additional issues which have no merit. Although he failed to prevail on this issue, one could not characterise Mr. Rollo’s personal injuries claim as being unmeritorious or unnecessary. Mr. Rollo lost the issue but on a narrow legal point that did not take up any appreciable court time. 51. There is no question whatsoever of Mr. Rollo having exaggerated his claim. Indeed, the defendant’s medical expert Dr. Murray stated that “everything points to a very genuine responder who was not exaggerating his symptoms”. Section 169 (1)(b) therefore has no application. Nor do any of the other factors listed in s. 169(1). 52. Ms. Webster’s personal injuries claim was undoubtedly weaker than that of Mr. Rollo, given that she failed to establish that she had suffered from a recognisable psychiatric injury. 53. However, I viewed the evidence of both Professor Gournay for the plaintiffs and Dr. Murray for the defendant as relevant to other questions which fell to be determined at module 1. This medical evidence was instructive in determining whether the plaintiffs represented ordinary persons whose requirements were objectively reasonable in all the particular circumstances. This, in turn, was of relevance to application of the legal test for nuisance as enunciated in Hanrahan v. Merck Sharp Dohme (Ireland) Ltd [1988] ILRM 629. Similarly, the medical evidence was of some relevance in assessing the sensitivity of the plaintiffs, which is one of the specific criteria for assessing WTN nuisance under the Defra framework. The medical evidence in relation to the impact of the WTN on Mr. Rollo was also relevant to the assessment of general damages for his loss of amenity. Thus, although I rejected the proposition that Mr. Rollo ought to recover general damages for personal injuries for his recognisable psychiatric injury, the medical evidence was nonetheless relevant in assessing the impact of the WTN upon him and contributed to an award which was significantly higher (per annum) than that awarded to Ms. Webster. 14 54. In all circumstances, I would consider it disproportionate and unjust to award the defendant its costs in respect of this issue. On the other hand, it is appropriate to relieve it of liability for the plaintiffs’ costs in respect of this issue. I will therefore make no order as to costs in respect of the personal injuries claim. I determine that this equates to the costs of 3 days of the hearing to represent the time spent hearing the testimony of the medical experts and the Webster Rollos themselves on this issue. I will also make no order as to costs in respect of the reports of Professor Gournay or in respect of consultations with him. I will also disallow the costs of any expert reports, pleadings, or written legal submissions associated with this issue. Finally, I will make no order as to costs in respect of the discovery of the Webster Rollos’ medical records. The argument that the plaintiffs exceeded the agreed time estimates 55. In Word Perfect, Donnelly J. accepted that cost-effectiveness in the general sense is the rationale behind many of the factors identified in s. 169. Cost-effectiveness may be a relevant consideration when deciding on issues such as conduct. Thus, litigants who fail to beat a lodgement or Calderbank offer, who are awarded damages falling within the jurisdiction of a lower court, who fail to succeed on unmeritorious and unnecessary issues or who fail to avail of procedural options to determine the litigation in a cost-effective manner may all be penalised on costs. However, Donnelly J. rejected the proposition that in awarding costs a trial judge is required in every case to engage in an assessment of the litigation choices made by the winning party from the vantage point where hindsight provides perfect vision. The costs hearing should not be an exercise in nitpicking and a broad-brush approach must be taken. Rather, the court must make an assessment of whether the conduct of the litigation could objectively be considered reasonable. Donnelly J. noted that the trial court, having heard the trial and adjudicated upon the case, will be in an excellent position to make the decision based upon what the court has seen and heard. 56. Module 1 of this case was fixed for 5 to 6 weeks (20 to 24 days) and ultimately was heard over the course of 53 days between 22nd November 2022 and 6th November 2023. It therefore ran for over double the time estimated. Even though the court had read all of the pleadings and expert reports submitted before the hearing commenced, both parties substantially exceeded the agreed timetable for the hearing of evidence and submissions. 57. However, this was because the parties’ time estimates significantly under calculated the time required to present and test the detailed factual evidence and the novel, complex and voluminous scientific, acoustic and planning evidence and materials presented to the court. 58. The plaintiffs did not unduly lengthen the trial. In arguing to the contrary, the defendant submitted that its view had always been that the case ought to take no more than a couple of weeks. The defendant stated that its core legal defence, from the outset, had been that the plaintiffs’ case must fail because the WTN complied with condition 15 and other reasonably objective yardsticks such as WEDG 2006. Counsel also submitted that, despite this core legal defence on which it sought clarity at the commencement of the trial, it had been “directed” by the court to go in to evidence which, in turn vastly extended the trial 15 duration. This is incorrect. No application was brought by the defendant either to this court or during the course of case management to have this core legal defence determined- either as a preliminary issue, or otherwise. Nor was the defendant “directed to move into evidence”. The defendant was entirely at large as to how it wished to dispute the plaintiffs’ case or to present its own case. 59. The defendant’s contention that the case should have concluded within a fortnight also ignores the fact that this court found against the defendant on its core legal defence on a variety of legal and factual grounds. It would always therefore have been necessary for the court to embark upon an assessment of the nature and impact of the WTN. 60. In truth, the defendant’s time estimate was always based on the erroneous assumption that it had a knockout point which it then failed to bring forward as a preliminary issue. Therefore, to the extent that the time allocated to this trial was informed by the defendant’s time estimate, it was inevitably far too short. 61. Separately, the defendant vigorously argues that the plaintiffs’ experts were prolix in their presentation of the nature and impact of the WTN. I disagree. 62. Although the direct evidence of the plaintiffs’ acoustic experts significantly exceeded the time estimated, this was precisely because the plaintiffs were, as their counsel submitted, “put on full proof of everything”. It was necessary for the plaintiffs to present the evidence necessary to establish the characteristics of the WTN by reference to, inter alia, the relevant sound recordings, time-domain graphs, and spectrograms. Moreover, it was also necessary for the plaintiffs to present a sufficient number of samples of this material at relevant times of the day and night to demonstrate that these characteristics occurred commonly and regularly for frequent and sustained periods of time. This necessity extended the plaintiffs’ acoustic experts’ direct evidence. 63. The defendant submitted that the plaintiffs’ experts’ presentation of the WTN was repetitive, involving the presentation of multiple sound recordings and other scientific data showing “graph after graph, peak after peak, trough after trough”. However, the defendant’s own approach to the case made this unavoidable. It was open to the parties to agree that the characteristics of the WTN exhibited on a confined sample of the sound recordings and graphs presented a faithful general picture of the characteristics of the WTN at the relevant times of the day and night. This would have obviated the necessity to present much of this evidence. 64. It is perhaps surprising that the defendant did not consider such an approach. It became apparent during the course of the testimony of the defendant’s acoustic expert that he did not dispute that the sound recordings and graphs gave a reasonable impression of the plaintiffs’ overall sound environment and of the commonly occurring characteristics of the WTN within it. 65. Although the duration of the direct testimony of the plaintiffs’ acoustic experts also significantly exceeded that of the direct testimony of the defendant’s acoustic experts, this was because the latter experts effectively declined to engage in any qualitative assessment of the characteristics of the Ballyduff WTN (beyond its decibel level). This naturally shortened 16 Mr. Carr’s direct evidence considerably (and, conversely, tended to lengthen his cross- examination). 66. In many respects, the plaintiffs’ underestimation of the time necessary to present their direct evidence was significantly less than the defendant’s underestimation of the time required to examine the plaintiffs and their experts. 67. The direct examination of the plaintiffs’ primary acoustic expert, Mr. Stigwood, took 15 hours instead of the 7 hours estimated. However, his cross-examination took 19 hours instead of the 2 hours estimated. The same was the case in relation to the factual witnesses. For example, Ms. Webster's direct evidence appears to have been approximately an hour and a half longer than estimated by the plaintiffs. However, the defendant’s estimate that her cross-examination would take one hour was far less than the 5 hours ultimately devoted to the task. The direct evidence of Mr. Rollo was shorter than estimated. However, his cross- examination was over twice as long as estimated. 68. This pattern of long direct examination and extremely lengthy cross-examination was also reflected in the evidence of the defendant’s primary factual and acoustic expert. I do not, however, consider that issues were inappropriately pursued by either party in cross- examination. 69. A detailed timetable for the hearing of evidence and submissions was agreed between the parties in this case. Demonstrably, this timetable was not adhered to. I accept that this court has significant powers in relation to the giving of evidence and has power to regulate its own procedures. I would not have hesitated to use these powers had I considered it necessary and appropriate to do so. 70. However, I hold to the view that I formed during the course of the trial. In light of the novelty and complexity of the issues raised, the time taken was necessary to enable the court to understand the case and its defence. Thus, it was necessary for the court to hear the plaintiffs’ evidence as to the overall impact of the WTN on their enjoyment of their properties; to hear the evidence of the plaintiffs’ and the defendant’s acoustic experts (and to a lesser extent their planning and medical experts) in relation to the characteristics of the WTN and its impact. It was necessary to understand the vast volume of guidance documents and scientific material submitted by both parties’ experts and to hear the experts’ analysis of the characteristics of the WTN by reference thereto. It was necessary to hear the recordings of the WTN, to visit the site, and to examine and assess the evidence in relation to planning compliance. All of this evidence assisted the court in identifying, understanding, and contextualising the various characteristics of the WTN as presented through these different modalities of evidence. Without all of this evidence, I could not have assessed the impact of these WTN characteristics at different times of the day and night, and formed a view on whether, and at what times, the WTN gave rise to an objectively unreasonable interference with the plaintiffs’ enjoyment of their homes. 71. What also substantially lengthened the trial was the sheer number of objections and disputes that arose during the course of the hearing, each of which gave rise to legal submissions which were then required to be ruled upon by the court. The length of the case was therefore impacted by the high level of dispute between the parties, which was an ever present and 17 somewhat regrettable feature of the case. A number of hearing days were unforeseeably devoted to these satellite disputes. With the exception of the costs of the amendment application in relation to the personal injuries claim (which I award to the defendant), these applications related to the WTN nuisance claim in which the plaintiffs have prevailed. They therefore fall to be awarded to the plaintiffs. 72. It is also artificial for the defendant to focus only on the conduct of module 1. The defendant’s approach to module 2 substantially increased the costs thereof. This renders hollow its criticism of the plaintiffs for not conducting the litigation in the most cost-effective manner possible. 73. I recognise that litigation must be carried out fairly, reasonably, and in some proportion to the matters in issue. At its heart, these proceedings involved a reasonably modest development comprising 2 wind turbines. One of these turbines has been restricted, and reasonably modest damages have been awarded to the plaintiffs. Against that backdrop, it is most unfortunate that such high costs have been incurred in this litigation. 74. However, I have no doubt that the modesty of the development and of the damages awarded belie the number, novelty, and complexity of the issues that required to be presented defended, assessed, and resolved in this case. Most of these issues were issues of fact. Each such fact was hard fought and gave rise to skilled, forensic, yet extensive direct and, in particular, cross-examination, mainly of the expert witnesses. As the case ran, reaching determinations on these facts would not have been possible without the presentation and testing of the evidence tendered in each respect. 75. Byrne and Moorhead v. ABO was also a WTN nuisance case in which the same experts, and indeed the same firms of solicitors, were instructed for both parties. Although liability was conceded on day 11, the case nonetheless ran for just shy of 24 days. That the full liability module in this case therefore took just over twice that time is perhaps unsurprising. 76. Overall, I take the view that responsibility for the time overrun in this case did not rest with the plaintiffs any more than with the defendant. There is no factor, relevant to the conduct of the plaintiffs before or during the proceedings that should deprive them of an order for the full costs of the determination of the nuisance claim. I therefore award the plaintiffs 100% of the costs of the determination of the WTN nuisance claim at module 1. Module 2 77. The defendant contends that this court should confine its module 2 award of costs to the Webster Rollos to 80% to reflect the fact that they did not succeed in obtaining the order sought in the proceedings, namely the shutdown of T2 during sensitive hours. 78. Granted, the injunction ordered was not precisely as sought by the Webster Rollos. However, the defendant’s position was that the court should confine the plaintiffs to damages in lieu of an injunction. The defendant also argued that no injunction should issue in light of the impact on the production of renewable energy. The court rejected these points and granted a tailored injunction. 18 79. The Webster Rollos therefore succeeded on the issue of remedy/injunction and the defendant wholly failed in resisting their entitlement to an injunction. The defendant was not partially successful on the issue of the injunction. It was wholly unsuccessful. 80. The defendant also argued vigorously (for the second time) that the court ought not to grant the Webster Rollos any injunction because the wind turbine did not in fact pose a nuisance. This argument took up a considerable proportion of module 2 and the plaintiffs were entirely successful on this issue. 81. Turning now to the defendant’s argument that the Shorten Cartys ought not to have participated in module 2. Given that the defendant sought to entirely re-agitate the issue of liability at module 2, it was entirely appropriate that they would participate. 82. Accordingly, I award all four of the plaintiffs the full costs of module 2, with no deduction. Module 3 General Damages 83. In Higgins, Murray J. noted that where an appeal is brought only against the assessment of quantum of damages by the High Court, the facility for making costs protective offers can assume decisive importance in determining what order for costs is just. 84. The same logic applies here. Module 3 proceeded as an assessment only hearing. In sharp contrast to a standard assessment only trial, the court had already heard the testimony of the plaintiffs before the commencement of module 3. Likewise, evidence had been given by the two psychiatrists regarding the impact of the WTN on the Webster Rollos. Expert acoustic evidence had been presented as to the likely impact of the WTN on amenity. The defendant had already thoroughly cross-examined the plaintiffs and all of their experts on their module 1 testimony. At module 1, the court had also made detailed findings on the impact of the WTN. No substantive new evidence on any of these matters was advanced at module 3.1 Finally, the defendant had the benefit of Quinn J.’s decision in Byrne v. ABO which this court followed and applied in relation to the assessment of general damages. 85. In preparing for module 3, the defendant was uniquely well equipped to value the general damages claim and to make a cost protective offer.2 Yet, it did not make a specific offer to any of the four plaintiffs in respect their claim to general damages. The defendant’s failure to make such an offer weighs heavily against its application for costs on this issue. 86. The defendant argues that it was “partially successful” on the award of general damages because the amount awarded by the court was closer to that which it had submitted should be awarded than to that which the plaintiffs submitted should be awarded. However, these legal submissions were made long after the evidence had been given at module 1 and even after the conclusion of all evidence at module 3. Virtually all of the relevant costs had therefore been incurred by the time this submission was advanced. 1 Save that Mr Rollo gave brief new evidence in relation to his accommodation claim. 2 Without prejudice to their right to appeal the court’s findings on liability/remedy etc. 19 87. Courts now routinely ask the parties to address them by way of submission on quantum of general damages (and other damages) after the evidence has closed. It would be absurd if by this avenue the defendant could claim to be “partially successful” on general damages entitling it to an award of costs after an assessment only hearing. 88. In any event, the quantum of a particular head of damages (as opposed, perhaps to a plaintiff’s entitlement to recover a particular head of damages) will rarely be a “separate and distinct” issue on which it can be said that a defendant, who has not taken costs protective measures, can qualify as “partially successful”. The defendant has merely advanced arguments or points on quantum, some of which were accepted by the court and some of which were rejected. 89. In any event, although the plaintiffs have recovered less than they submitted ought to be awarded, they have also recovered more than the defendant submitted ought to be awarded (save in the case of Ms. Webster). 90. Ultimately, the plaintiffs were successful in obtaining an order for damages. Importantly, regardless of the quantum of damages ultimately awarded, it was necessary to hear the relevant testimony in any event. The trial has not been materially increased by the plaintiffs’ conduct. 91. There is no question but that it was reasonable for all four of the plaintiffs to pursue their claim to general damages and there is no suggestion that they exaggerated their claim. There is nothing in the plaintiffs’ conduct either before or during the proceedings or in the manner in which they conducted their case which ought to deprive them of costs. 92. Accordingly, I can see no basis upon which to decline to award to the plaintiffs the full costs of the general damages issue. NF property devaluation and HH stigma damages claim 93. The points at paras. 85 and 88 to 90 apply equally to the NF property devaluation claim. Although it had the plaintiffs’ valuation reports, the defendant did invoke any of the available mechanisms to protect itself on costs. Specifically, it did not make any formal offers in respect of the NF property devaluation or the HH stigma damages claim. In the absence of costs protective measures, I doubt that the quantum (as opposed to the recoverability) of a particular head of claim is a “separate and distinct issue” upon which a defendant who unsuccessfully contests liability and also contests quantum can be said to be “partially successful”. The trial was not lengthened by the contest between the parties on quantum. The evidence of the valuation experts and the relevant legal argument would have been required to determine the quantum of this claim in any event. 94. The Shorten Cartys were successful in their claim to property devaluation. The damages awarded for NF property devaluation were, as the court noted, roughly halfway between those figures urged by the parties’ respective experts. 95. Whilst I accept that the Shorten Cartys sought to reframe their NF devaluation claim in a manner that was not accepted by the court, this did not unduly lengthen the hearing or distract from the principal issue which was the extent to which the open market value of NF was reduced by the WTN nuisance 20 96. This logic applies even more strongly to the Webster Rollo claim for stigma damages to HH The defendant entirely denied the validity of this head of claim. The plaintiffs succeeded in establishing their entitlement to this head of claim and achieved an award of damages, albeit a modest one. In so far as concerns the claim to stigma damages, the Webster Rollos, and not the defendant, succeeded. 97. I will award costs in each of these respects to the four plaintiffs. Mr. Rollo’s past and future accommodation claim 98. The defendant also notes that the court rejected Mr. Rollo’s past and future accommodation claims and maintains a claim for 100% of its costs of this issue. 99. I accept that this issue can be distinguished from the quantum issues discussed above as it concerned a wholly unsuccessful head of claim. This issue can be characterised as a “separate and distinct issue” on which the defendant was “partially successful”. 100. The court time spent on this issue was limited to Mr. Rollo’s very short testimony at module 3 and short oral submissions on the issue. This could only have increased the overall costs of module 3 to a marginal degree. 101. I will grant the defendant the costs of this aspect of the claim, limited strictly to two hours. Mr. Rollo’s reinstatement costs 102. This issue can be characterised as a “separate and distinct issue” on which the defendant was “partially successful”. The reinstatement claim was an entirely separate head of claim which was supported by expert testimony which would not otherwise have been necessary. The reinstatement claim was not awarded in a lower amount but was rejected entirely. In such circumstances, it may be appropriate for a court to depart from the usual rule awarding costs to the plaintiff. 103. In this case, the presentation of this claim took up a distinct and appreciable period of court time, increasing costs. Moreover, I view the reinstatement claim as having been unstateable. 104. In the circumstances, it is just to disallow the costs relating to the input of the plaintiffs’ expert loss adjuster, Mr. Fitzgerald, who testified on this issue and to award those costs to the defendant. I will award to the defendant the costs of 2 hours in this respect. Claim to aggravated and exemplary damages 105. Finally, I accept that the plaintiffs were unsuccessful in respect of the claim for aggravated and exemplary damages. However, as will be apparent from my module 3 judgment this was a marginal call. Even though they did not prevail, the claim for aggravated and exemplary damages could not be characterised as unmeritorious. It was certainly not unreasonable for the plaintiffs to have advanced this head of claim. 106. In any event, the only court time devoted to this issue was a short period of the oral argument. No additional testimony was required. Even if this issue could be characterised 21 as “separate and distinct”, it did not materially increase costs. I am not therefore disposed to make allowance or apply any carve out for the costs of this issue Final observations in relation to costs. 107. I have attempted to deal above with all of the constituent elements of all three modules of the trial. Insofar as I do not deal expressly with any particular constituent element of the proceedings, I order that the costs of same are awarded to the plaintiffs. 108. I will also award to the plaintiffs the costs of the two mediations. 109. In so far as concerns any costs awarded to the defendant and bearing in mind that the plaintiffs were represented by only one senior counsel, I consider that the defendant should be permitted to recover only the costs of one junior counsel and one senior counsel. 110. I also consider it appropriate to note that several of the hearing days at all three modules (and in the ensuing applications for a stay and for costs) were, for various unavoidable reasons, cut short. I will not attempt to compile a list of these dates but this fact ought to be taken into account in the negotiation or adjudication of costs. In a hearing as long as this, it is only fair and proportionate that some allowance is made in this regard. Payment on account of costs pending adjudication 111. The plaintiffs also seek an order pursuant to O. 99 r. 2(5) of the Rules of the Superior Courts for payment on account of a reasonable sum in respect of costs pending adjudication. 112. O.99 r. 2(5) permits an order for the payment of costs forthwith notwithstanding that the proceedings have not been concluded. The principles governing an application for payment on account are now provided for in Practice Direction HC-125: “Where there is no dispute as to the liability for the payment of costs and in any other case which a judge thinks appropriate, an order may be made directing payment of a reasonable sum on account of costs within such period as may be specified by the judge pending the adjudication of such costs. Such orders may be made on an undertaking being given by the solicitor for the successful party that, in the event of adjudication realising a smaller sum than that directed to be paid on account, such overpayment will forthwith be repaid.” 113. The defendant argues that the plaintiffs are not in reality seeking a payment of costs “pending adjudication”. I accept that this is so. The payment out is not sought “pending adjudication” but pending the resolution of the defendant’s intended appeal on liability, remedy and quantum. 114. The defendant does not go so far as to argue that this court lacks jurisdiction to make an order for payment out pending an appeal on liability. This concession is well made. Practice Direction HC-125 appears to contemplate payment out where there is no dispute as to the 22 liability for the payment of costs but also in “any other case which a judge thinks appropriate”. 115. The issue, therefore, is not whether this court has power to grant the order sought but whether in its discretion it should do so. 116. I have no doubt that it has been very difficult for the plaintiffs, as private individuals, to carry the financial burden of the litigation. This burden, along with the consequences of the WTN nuisance, persists two years after the liability judgment in their favour in March of 2024. 117. However, to grant the order sought in the present circumstances would be a radical departure from the usual practice of the courts in relation to costs pending an appeal on liability. The plaintiffs have not identified a precedent case in which a court ordered payment out where a defendant bona fide intended to appeal in respect of both liability and quantum. 118. In my view, orders of this type will not generally be appropriate where there is neither agreement nor a final determination in relation to the liability to pay the relevant costs, which is the position here. 119. In the circumstances, I am not disposed to exercise my discretion in favour of an order for payment out of the plaintiffs’ costs. Rather, as per my judgment of even date in relation to the defendant’s application for a stay I will stay the order for costs together with the adjudication thereof.