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Conditional offer to replace roof was too uncertain to justify not awarding the costs of the proceedings to plaintiffs

By: Colm Scott Byrne BL

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Court of Appeal allows the appeal of a decision of the High Court and sets aside the Costs Order and substitutes it for an order awarding the plaintiffs the costs of the High Court proceedings, on the grounds that: (a) the trial judge did not have sufficient regard to the fact that the letter in February 2016 was, at best, a conditional or contingent offer to replace the roof if recommended to by an independent expert when it came to adjudicating on the costs; (b) the trial judge erred in finding that the plaintiffs did not win “anything of value” in pursuing and obtaining a determination to the effect that the roof should be replaced when all that was offered was a conditional offer to replace the roof if recommended by the independent expert; (c) the offer was too uncertain to have any effect in terms of “penalising” the successful plaintiff; and (d) the Order does a significant injustice to the successful Plaintiffs and therefore could not be permitted to stand.

Collins J (nem diss): Appeal of a decision of the High Court to award the defendant/respondent the costs of the proceedings from the 18th February 2016, the date an open letter sent to the plaintiffs/appellants - the plaintiffs/appellants made a claim for breach of contract, negligence and breach of duty in relation to the construction of a duplex dwelling which was constructed by the defendants pursuant to a building agreement with the plaintiffs – the trial ran for 12 days - the defendants had accepted the house required remedial work but no agreement was made as to the extent – the building agreement contained an arbitration clause which was not exercised by the defendants - the trial judge directed specific performance of the building agreement by the defendant as he found that the roof required to be replaced - trial judge also awarded the plaintiff special damages for the cost of renting another property – t no general damages were awarded – the defendants set out a procedure for identifying and remedying the defects through the use of an independent expert in the letter dated the 18th February 2016 – the trial judge awarded the defendant all the costs of the proceedings from the day of the letter letter save for the costs incurred on the issue of renting alternative accommodation - the plaintiff was awarded costs up to the day the letter was sent plus the costs incurred on the renting issue - Order 99, Rule 1A of the Rules of the Superior Courts – whether the plaintiffs achieved a better outcome by having litigated their action to a conclusion - the Court found that the offer in the letter involved not an offer to replace the roof but an offer to have the issue of whether the roof should be replaced and any other issues regarding the scope of the remedial works required determined by an independent expert - whether an offer was made to replace the roof - appeal allowed - costs of the High Court proceedings awarded to the plaintiffs.

Note: This is intended to be a fair and accurate report of a decision made public by a court of law. Any errors should be notified to the editor and will be dealt with accordingly.

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