High Court: Differential costs order made in domestic violence case

About this case:

• Citation:
  [2025] IEHC 170
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Ms Justice Emily Egan

Delivering judgment for the High Court, Ms Justice Emily Egan stressed that when it became apparent to the plaintiff that she could not place medical evidence before the court, the plaintiff “could — and in my view should — have considered applying to adjourn the High Court hearing some two weeks later in order to remit same to the Circuit Court. It is this failure which in my view compels this Court to make a differential costs order.”

Background

The plaintiff sought damages for personal injuries suffered by reason of an assault, battery and trespass to her person by her husband at their former family home in 2013. 

The case was initially assigned a hearing date in January 2025 which was subsequently abandoned when the defendant sought discovery of the plaintiff’s medical records by letter dated 21 January 2025. 

On 5 February 2025, the defendant’s solicitors sent a costs differential warning letter to the plaintiff.

Discovery was made by the plaintiff on 19 February 2025, but no agreement was reached between the parties for the admission of the medical records and no formal steps were taken by the plaintiff to place them before the Court.

At trial, the plaintiff did not tender any medical evidence to the High Court in respect of her personal injuries, despite having initially provided particulars of her personal injuries in her pleadings on the basis of reports from her GP and an orthopaedic surgeon.

In the absence of medical evidence, the court could not find that the plaintiff suffered any particular clinical injury and could not make any findings as to whether, and to what extent, those injuries impacted her current condition and prognosis.

Accordingly, the High Court could only award damages for the “agony of the moment” together with damages for pain and suffering in the immediate aftermath of the assault, totalling €25,000.

The matter returned before the High Court for a hearing as to costs.

Submissions

The defendant argued that no certificate for senior counsel ought to be awarded and that the court ought to make a differential costs order pursuant to s.17 of the Courts Act 1981 (as amended).

The plaintiff sought Circuit Court costs together with a certificate for senior counsel, arguing that it would be unjust to fix her with a differential costs order in circumstances where same would further increase family tensions and where the defendant had “in a civil court been convicted of what is effectively a criminal offence” and would effectively be awarded for his actions. 

The High Court

Ms Justice Egan set out eight principles arising from the relevant authorities.

Firstly, that s.17(5) provides two options to a trial judge awarding damages within the jurisdiction of a lower court – either to measure the sum between the costs actually incurred and those that would have been incurred had the proceedings been commenced and determined in the appropriate court and to direct the plaintiff to pay that sum to the defendant, or to decline to make any measurement of the difference but instead to refer the matter to adjudication.

Secondly, that the court is obliged to have regard to the legislative purpose of s.17(5) of the Courts Act 1981, which was “to provide a strong incentive to the institution of proceedings in the lowest court having jurisdiction to make the appropriate award.”

Thirdly, that the judicial discretion to make a differential costs order is triggered by the award of a sum that a lower court would have had the power to award. In this regard, Ms Justice Egan highlighted that this alone does not require the court to make an order under s.17(5), particularly where the award was close to the limit of the lower court’s jurisdiction or where unpredictable developments during trial reduced the value of the claim.

Fourth and fifth; that the court will consider whether there was any realistic basis for commencing proceedings in the higher court in the first place, and whether it was appropriate to continue the proceedings in that court at any given time.

Sixth and seventh; the making of a differential costs order will be more difficult to resist when the defendant has warned the plaintiff in advance that same will be sought, and there is no obligation on a defendant to apply to remit the proceedings to a lower court.

Finally, Ms Justice Egan noted that in any case in which a differential costs order is sought, the trial judge must have regard to all the circumstances of the case.

Turning to the facts of the case, Ms Justice Egan was satisfied that on the basis of the Statement of Claim, it was appropriate to commence proceedings in the High Court.

Noting that the court was given no information as to why the medical experts where not available to attend trial, the judge accepted that there was no reason to assume that that development had occurred, or was predicted to occur, at the time the plaintiff first applied to list the matter for trial on 26 November 2024.

The court considered that until shortly before the trial date, it was reasonable for the plaintiff to maintain proceedings in the High Court, but that when the attendance of her GP and orthopaedic surgeon at trial could not be secured she should have applied to adjourn the High Court hearing some two weeks later to remit same to the Circuit Court.

In those circumstances, Ms Justice Egan found that the failure to remit the proceedings at that stage compelled the court to make a differential costs order, but bearing in mind that senior counsel’s brief fee was already properly incurred, those differential costs would be limited to the difference between the defendant’s solicitor’s trial attendance costs for a 90-minute Circuit Court assessment with no defence witnesses as opposed to his trial attendance costs for a 90-minute High Court assessment with no defence witnesses.

Conclusion

Accordingly, the High Court made a differential costs order in the amount of €1,476 including VAT, awarded the plaintiff her costs on the Circuit Court scale with a certificate for senior counsel, and made no order for costs in respect of the costs hearing itself.

Martina Quinlan v Michael Quinlan [2025] IEHC 170