A High Court judge has said judgments should avoid using Latin terms or “terms of art” and be written in “plain language” that a “reasonably intelligent” lay person will understand.
Judgments should, where possible, seek to use “plain English” over expressions generally known only to lawyers, Mr Justice Michael Twomey said.
In the application before him, the judge opted to use the terms “usual” and “enhanced” costs, instead of referring to “party and party” costs and “legal practitioner and client” costs, terms used by lawyers.
Using the legal terms would mean “double-Dutch” to a lay person, he said.
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He made the remarks when refusing to award legal practitioner and client costs – the highest level of costs – against property investment company Propiteer Ireland Ltd, which discontinued proceedings initiated last December against Castlehaven Property Finance DAC and three other companies.
Propiteer must pay the defendants’ costs on the usual basis up to the discontinuance, he ruled.
He said Castlehaven must pay Propiteer’s costs, again on the usual basis, for successfully defending the former’s application for enhanced costs, he held.
When a court makes the usual costs order, it has “no control” over how the costs are calculated because that is done by the Office of the Legal Costs Adjudicators in line with rules and legislation passed by the Oireachtas, he said.
For many decades, the judiciary has pointed out that the usual costs in High Court cases “are anything but reasonable in amount”. Even a usual costs order would mean Propiteer would have to pay a sum “anything but reasonable” for legal services provided to Castlehaven.
An enhanced costs order is only made in exceptional cases and the amount payable under that is “even more prohibitive” than in the usual costs order, he said.
Propiteer commenced proceedings on December 11th last against Castlehaven, Clondalkin Urban Development Ltd, Pearlvale Ltd and Arbeten Ltd, and the case was admitted to the fast-track Commercial Court last February.
Propiteer alleged breach of contractual and fiduciary obligations, conspiracy and actions contrary to its financial interests.
A pretrial defence application was listed for hearing in July, but Propiteer discontinued the proceedings on the eve of that hearing.
Castlehaven then sought enhanced costs for reasons including the proceedings were grounded on an affidavit by David Marshall, who swore to be a director of Propiteer when he was not.
The judge said there was no sworn evidence in relation to Propiteer’s or Mr Marshall’s motivation for instituting the proceedings. A submission by Castlehaven that it was to benefit Mr Marshall’s debt arrangement in the UK “amounted to speculation”.
There was no court finding that the proceedings were taken for an ulterior motive because the case was discontinued without the court having made any findings of fact.
While Castlehaven was subject to an injustice because it had to defend proceedings brought on a false basis, the question was whether Propiteer, which would be punished by the usual costs order, should be further punished by an enhanced costs order.
Propiteer’s conduct was not so “egregious” to warrant an enhanced costs order against it, he held. Propiteer did “the right thing” in discontinuing its case at a very early stage, saving court time and costs, despite having initiated its proceedings on a false basis.
Earlier, in considering the issue of language in judgments, he said the rule of law states the law “must be accessible and so far as possible, intelligible, clear and predictable”.
Making judgments more easily accessible to the reasonably intelligent layperson should make the system better for litigants, he added.
