Mars Capital Finance DAC v Walsh

AN CHÚIRT UACHTARACH THE SUPREME COURT Supreme Court Appeal Number: S:AP:IE:2025:000005 [2026] IESC 20 Charleton J. O’Malley J. Hogan J. Murray J. Collins J. BETWEEN/ MARS CAPITAL FINANCE IRELAND DESIGNATED ACTIVITY COMPANY PLAINTIFF/RESPONDENT - AND – SAMUEL WALSH DEFENDANT/APPELLANT RULING of the Court delivered this 24th day of March 2026 (costs) 1. As is evident from the judgment of 12 November 2025 ([2025] IESC 45), this Court dismissed the appeal brought by the defendant/appellant, Samuel Walsh (‘the appellant’), from the order of the High Court ([2024] IEHC 648 (Barr J.). The High Court had dismissed Mr Walsh’s appeal from the order of the Circuit Court which granted relief in favour of the plaintiff/respondent, Mars Capital Finance Ireland DAC (‘Mars’). Both parties rely on s. 169(1) of the Legal Services Regulation Act 2015 (‘the 2015 Act’) and on the recent authorities of this Court governing the exercise of its cost awarding power and attendant discretion. The starting point remains that a party who is entirely successful in proceedings should ordinarily recover its costs from the unsuccessful party. 2. It is accepted by the appellant that Mars was entirely successful in its appeal to this Court. Accordingly, the issue of costs must be approached on that basis. It is prima facie entitled to its costs in this Court, the High Court and the Circuit Court in accordance with s. 169(1) of the 2015 Act. The exercise by the Court of its discretion to order otherwise falls to be addressed by reference to the principles set out by this Court in Little v. Chief Appeals Officer and Ors. [2024] IESC 53 (‘Little’). 3. As well as stressing that it was entirely successful in the proceedings, Mars relies on this Court’s recent decisions including Hegarty v. The Commissioner of An Garda Síochána [2025] IESC 41 and Little as reaffirming the normal position that ‘costs ordinarily follow the event’, subject to limited and reasoned discretion to depart in appropriate circumstances. Mars further invokes the analysis of Murray J. in Little at paras. 24 – 25 referred, including the Court’s reference to the earlier judgment of McKechnie J. in Godsil v. Ireland [2015] IESC 103, [2015] 4 IR 535, to emphasise that a departure from the default costs following the event rule requires clearly identified circumstances of sufficient weight, to be judicially exercised ‘on a reasoned basis, clearly explained, and one rationally connected to the facts’. 4. Mars submits that those circumstances do not present here. In particular, it argues that the case is not properly characterised as a test case or a form of public interest litigation. Mars highlights that the State is not a party; that the appellant did not seek public law relief; and that this Court granted leave to appeal on the specific ground whether the settlement agreement reached between the parties gave rise to an estoppel such as was capable of precluding the appellant from relying on the invoked provisions of the Statute of Limitations. 5. Mars also places reliance on Smith v. Cunningham [2023] IESC 33 at para. 11 as an example of this Court’s application of the modern costs approach in a private dispute, and as illustrating that the Court should be slow to displace the norm in that setting. Finally, Mars again emphasises that it was entirely successful at each stage of these proceedings in the Circuit Court and the High Court and submits that the costs order made in the courts below should remain undisturbed, and that the appellant should also be ordered to pay the costs of the appeal to this Court. 6. The appellant accepts that the default position would ordinarily entitle it to recover its costs of the appeal to this Court. The appellant, nonetheless, submits that this appeal presented special circumstances justifying a departure from the usual rule. He relies on several recent decisions of this Court, namely, Connolly v. An Bord Pleanála [2018] IESC 6 at para. 8 as supporting a broad, non-technical evaluation of the justice of the case when assessing whether a different costs order is appropriate. That is, the appellant contends that the authorities do not suggest that an ‘overly meticulous approach’ to the allocation of legal costs is required. 7. Moreover, the appellant refers to this Court’s decision at para. 46 in Little, acknowledging the observation that the norm under s. 169(1) of the 2015 Act that ‘costs follow the event’ will not usually be departed from in litigation between private parties. However, the appellant contends that this case is distinguishable because of the general importance and complexity of the limitation/extinguishment legal issues determined, or in circumstances where the point arose from unclear legislation (Lee v. Revenue Commissioners [2021] IECA 114 (‘Lee’) and Mallon v. Minister for Justice [2024] IESC 47 (‘Mallon’)). 8. The appellant further relies on Lee and Mallon as illustrating that the clarification of important or uncertain points of law may properly inform a departure by this Court from the default rule under s. 169(1) of the 2015 Act. That is, the appellant emphasises the historical depth of the limitation/extinguishment legal issues addressed, the paucity of authority in this specific area of law, and the potentially wider relevance of the Court’s clarification. The appellant contends that the judgment will be of material assistance to the respondent generally, given its broader role in mortgage possession litigation and the acquisition of long-outstanding loans. 9. The appellant then highlights that the respondent’s substantive position in the appeal included arguments said to involve reconsideration of existing authority (including reference to Perry v. Woodfarm Homes Ltd. [1975] IR 104, which he advances as further indicating the weight and novelty of the issues engaged by the present appeal). On that basis, the appellant invites the Court to award him his costs of the appeal, or, alternatively, to at least make no order as to the costs of the appeal, and to vacate all costs orders previously made. In particular, the appellant seeks a departure from the ordinary rule in the courts below, submitting that there should be no order as to costs in the Circuit Court and that the High Court costs order should be revisited or vacated. 10. The Court has considered the parties’ submissions as to whether there are special circumstances justifying departure from the normal rule under s. 169(1) of the 2015 Act. The Court accepts that the appeal raised issues of real complexity and general importance in the area addressed in the substantive judgment, and that the judgment provides clarificatory guidance likely to be of assistance beyond this litigation. The Court also accepts that this clarification may be of practical benefit to Mars in the conduct of comparable cases. Those features, in the Court’s view, provide a sufficient basis to depart from the default position in relation to the costs of the appeal to this Court. 11. In particular, the Court emphasises that this conclusion reflects the appeal-specific exercise of the discretion under s. 169(1) of the 2015 Act. It does not involve any reclassification of these proceedings as public interest litigation or as a test case in the strict sense. Rather, the Court’s order reflects the particular importance and complexity of the issues determined on this appeal and the broader clarificatory value of this case, notwithstanding the inter partes character of the dispute between the private parties. 12. The Circuit Court proceedings and the appeal to the High Court were determined by reference to the parties’ rights and obligations as litigated at those levels and having regard to the issues before those courts. The appellant was unsuccessful in the Circuit Court and unsuccessful on appeal to the High Court, and the High Court expressly affirmed the Circuit Court costs order and awarded the respondent its costs of the High Court appeal. 13. The Court is not satisfied that the circumstances relied upon by the appellant in relation to the Circuit Court hearing provide a sufficient basis to deprive the successful party of its costs at that level. Nor is the Court persuaded that an adequate basis has been established for vacating or varying the High Court costs order in the present case. Taking account of these matters, the Court, therefore, concludes that it is just to maintain the costs orders made in the Circuit Court and High Court in favour of Mars but to make no order as to costs of the appeal to this Court.