A recent judgment of the Supreme Court has recognised that there are certain difficulties in the operation of the lodgment procedure under order 22 RSC. Pending an authoritative review, it has set out its assessment of the current legal position on a number of issues here.
In the recent case of Reaney v Interlink Ireland Ltd (t/a DPD),1 the Supreme Court considered the principles which should guide the court first in deciding whether to award pre-judgment Courts Act interest, where available, and then whether any award of this statutory interest should be taken into account in considering whether a plaintiff had beaten a lodgment. It also looked at the validity of the practice of making a single lodgment in respect of multiple pleaded causes of action. Finally, it considered the costs rules that should apply if a plaintiff fails to beat a lodgment but the matter is one of general assessment or the plaintiff does beat a lodgment but only just.
O’Donnell J reviewed relevant case law as well as the pertinent court rules and their application in practice. He concluded that a number of issues which he had to address would merit from a broader consideration by the rules making committee. Pending any such authoritative review, the following should apply:
- Pre-judgment interest under the Courts Act 1981 should be awarded when a court concludes that the amount it is awarding is clear cut, could, and should, have been paid earlier;
- Where a claim is difficult and requires assessment and determination, it may be appropriate not to award pre-judgment interest;
- Pre-judgment interest should not have to be included in a lodgment and accordingly should not be taken into account in considering if the plaintiff has received an award in excess of the lodgment;
- A single lodgment expressed as one being enough to satisfy all claims made by the plaintiff, is a valid lodgment;
- Where a plaintiff fails to beat a lodgment, but falls short by a clear margin, and the matter is one of general assessment rather than a precise award, a court may consider that a sufficient ground to depart from the presumptive costs order under order 22 rule 1(5) in which case a court may reflect the reasonableness of the pursuit of the claim by, if appropriate disallowing some element of the plaintiff’s costs, by reference to the Veolia2 principles where there are distinct issues or more generally;
- Conversely, where a plaintiff beats a lodgment but by only a small amount, a court may still consider if it was reasonable to have pursued the case, and may reflect that adjudication in its award of costs either under the Veolia principles where there are clearly distinct issues, or by extension of them.