Member Login

Unsuccessful petitioners to have examiner appointed must pay 50% of creditors’ costs

By: Colm Scott Byrne BL

or click here to request site subscription to search and view all judgments

Court of Appeal allows appeal in part of a decision of the High Court that the unsuccessful petitioners to have an examiner appointed to the company should have to pay the costs of the creditors who opposed the application, and substitutes it for an order that the creditors should recover 50% of their costs from the petitioners, on the grounds that: (a) the trial judge did not explain why she took the view that the grounds advanced by the petitioners did not justify the exercise of her discretion so as to make no order for costs; (b) the trial judge failed to engage at all with the submissions made by the petitioners; and (c) while the Court, if undertaking an entirely de novo assessment of where the costs should fall, might have been minded to make no order as to costs, some weight must be given to the fact that the judge came to a different conclusion.

Collins J (nem diss): Costs of legal proceedings - insolvency - examinership - appeal of a decision of the High Court to make an order that the unsuccessful petitioners who had made an application to have an examiner appointed to a company should pay the costs of the application to the creditors who opposed the application - the petitioners had argued that there should be no order as to costs - both the petitioners and creditors were shareholders in the company - the creditors resolved not to continue funding the company and issued an application to have the company wound up - the petitioners then petitioned to have an examiner appointed to the Company - a provisional liquidator and interim examiner were appointed - both petitions were directed to be heard together - an order was made by the High Court discharging the interim examiner and orders for the winding up of both companies were made - the issue of costs was deferred pending an appeal - an appeal was brought by the petitioners - there was no investor interest and ultimately the appeal did not proceed - no order as to costs was made for the appeal - the issue of costs in the High Court was heard by the High Court - High Court directed that the petitioners pay the creditors costs - whether there were special circumstances for departing from the normal rule that costs follow the event - application for costs was made prior to the the commencement of Part 11 of the Legal Services Regulation Act 2015 - Order 99 of the Rules of the Superior Courts - whether the trial judge provided sufficient reasons for their decision - Court then had to go on to consider the appropriate order - appeal allowed in part - Court orders that the creditors should recover 50% of the costs of the application from the petitioners.

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.

Leave a Comment

Your email address will not be published. Required fields are marked *