ESB to pay 60% of UCC flood legal bill
Mr Justice Max Barrett said he feared many cases that should be brought to court were not, as the issues of costs meant the courts were accessible to just a few.
His warnings came as he ruled that the ESB must foot 60% of University College Cork’s estimated several million euro costs of marathon legal proceedings over extensive flood damage at the college in late 2009.
UCC is entitled to its costs against the ESB, less a 40% discount, of the 104-day action, Mr Justice Barrett said yesterday. In his ruling, the judge referred to the “over-priced system of court-administered justice”.
If UCC was correct in arguing it should get 100% of its costs based on the normal “costs follow the event” rule, that would mean the true effect of that rule was “more deterrent than incentive”, he said.
It would mean cases that “ought to be brought are not brought” and the courts, “though technically open to all, are truly open to increasingly few”.
The judge said “cost-shifting” between parties may be necessary to ensure “so-called ordinary people” are able to recover the costs of bringing winnable litigation. As this action involved “two monied parties”, it was unnecessary to address the issue further, he said.
Last October, the judge found the ESB 60% liable in nuisance and negligence for the flood damage and UCC 40% liable in contributory negligence. The ESB is appealing the decision.
The ESB has come under pressure to settle with the more than 100 victims of the flood. Solicitor Joe Noonan has previously called on the company to drop its appeal and enter talks about compensation amid fears many of his clients may die before the appeal is heard.
“Several clients are elderly and some have passed away since the flood. I have fears that others may not survive to see the end of the appeals process,” he said.
In his ruling, Mr Justice Barrett said that, in claiming 100% of its costs against ESB, UCC essentially argued it had to bring the action to establish ESB was liable in negligence and also argued it succeeded in establishing the ESB liable in nuisance. It further argued the contributory negligence issue had not involved additional court time and expenditure.
Anyone not on the UCC side who sat through the 104- day case “may have been surprised” by that last argument, the judge said. “Certainly, the court was.”
Having analysed the relevant legal principles and cases, the judge said this was not a complex case. While “long and expensive” with lots of witnesses, it was in the end a case of nuisance, negligence and contributory negligence that fell to be gauged by the established facts.
That meant a relatively simple analysis was sufficient to decide the costs issue, he said. UCC won its claims of nuisance and negligence and those twin successes were the “events”.
Application of the full indemnity norm would mean UCC would get all its costs but “justice for the winner” was not the only concern in apportioning legal costs.
It was “entirely reasonable” for ESB to claim, by way of defence, UCC was guilty of contributory negligence. It was also clear the court considered UCC guilty of “serious and significant” contributory negligence.
Additional factors included this was the first Irish case where the liability of a dam operator fell to be tested fully in a court and was also a “close run” case as evidenced by the 60/40 finding on liability.
In its action, UCC claimed the ESB’s management of water releases from two hydro-electric dams on the River Lee lead to significant unnecessary additional flooding causing substantial damage to 29 buildings on the UCC campus.
Mr Justice Barrett ruled ESB, as dam operator, was 60% liable in nuisance and negligence for the damage to UCC’s properties. UCC was 40% liable in contributory negligence due to failing over years to act on mounting information of flood risk to its properties and continuing to construct properties on the River Lee flood plain.
UCC brought its claim on behalf of its insurer, Aviva, which sought some €20m damages for losses at UCC and another €14m for losses suffered by other property owners.
The amount of damages will be quantified later.
CONNECT WITH US TODAY
Be the first to know the latest news and updates
