Moorview Developement Ltd & ors v First Active Plc & ors [2018] IESC 33 (27 July 2018)

Moorview Developement Ltd & ors v First Active Plc & ors [2018] IESC 33 (27 July 2018)

The Supreme Court held that the High Court has jurisdiction under both Order 15, Rule 13 of the Rules of the Superior Courts and section 53 of the Supreme Court of Judicature (Ireland) Act 1877 to make a non-party costs order against a person funding litigation, even if not a party to the proceedings. The jurisdiction is discretionary and should be exercised where the funder is the real party behind the litigation, stands to benefit, and the company is insolvent. On the facts, Mr Cunningham funded and controlled the litigation, was the main beneficiary, had notice of potential liability, and the proceedings were unreasonably pursued, justifying the order against him.

Citation
[2018] IESC 33
Parties
Plaintiffs/notice Parties: Moorview Developments Limited, Salthill Properties Limited, Valebrook Developments Limited, Springside Properties Limited, Drake S. C. Limited, Malldro S. C. Limited, The Poppintree Mall Limited, Blondon Properties Limited; Defendants/respondents: First Active Plc, Ray Jackson, Bernard Duffy; Appellant (non Party): Brian Cunningham
Jurisdiction
Ireland
Judgment Date
27 July 2018
Procedural Posture
Civil Appeal / Supreme Court Judgment on Appeal From High Court Order for Non Party Costs
Outcome
Appeal dismissed
Legal Topics
Non Party Costs Orders, Corporate Veil, Security for Costs, Jurisdiction to Award Costs, Litigation Funding
Civil Procedure Company Law Non Party Costs Orders Corporate Veil Security for Costs Jurisdiction to Award Costs Litigation Funding

Case Brief

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Parties

Moorview Developments Limited, Salthill Properties Limited, Valebrook Developments Limited, Springside Properties Limited, Drake S. C. Limited, Malldro S. C. Limited, The Poppintree Mall Limited, Blondon Properties Limited

Plaintiffs/notice Parties

First Active Plc, Ray Jackson, Bernard Duffy

Defendants/respondents

Brian Cunningham

Appellant (non Party)

Procedural Posture

Civil Appeal / Supreme Court Judgment on Appeal From High Court Order for Non Party Costs

Legal Issues

  1. 1 Does the Irish High Court have jurisdiction to make a non-party costs order against a person funding litigation?
  2. 2 What are the criteria for exercising such jurisdiction?
  3. 3 Was it appropriate to make such an order against Mr Cunningham on the facts?

Ratio Decidendi

The Supreme Court held that the High Court has jurisdiction under both Order 15, Rule 13 of the Rules of the Superior Courts and section 53 of the Supreme Court of Judicature (Ireland) Act 1877 to make a non-party costs order against a person funding litigation, even if not a party to the proceedings. The jurisdiction is discretionary and should be exercised where the funder is the real party behind the litigation, stands to benefit, and the company is insolvent. On the facts, Mr Cunningham funded and controlled the litigation, was the main beneficiary, had notice of potential liability, and the proceedings were unreasonably pursued, justifying the order against him.

Court Disposition

Appeal dismissed

Orders

  • Order of the High Court making Mr Cunningham personally liable for the costs of the proceedings affirmed.