Friday 19 January 2018

McFeely fails in attempt to gain costs over Priory Hall court battle

Tom McFeely
Tom McFeely

BANKRUPT developer Thomas McFeely has failed to obtain some of the costs of a High Court battle over the evacuated Priory Hall apartment complex in Dublin.

And High Court president Mr Justice Nicholas Kearns, in awarding the bulk of costs in favour of Dublin City Council, strongly criticised the way in which Mr McFeely's lawyers sought to appeal an order jailing him for contempt and fining him €1m in 2011 for  breaching an undertaking he gave to remedy fire safety defects at the Donaghmede apartments.


The apartments were evacuated by court order in October 2011 leaving 256 residents in temporary accommodation.


Today, Mr Justice Kearns rejected Mr McFeely's application for the costs of two days in the High Court in November 2011.


He described as "reprehensible" Mr McFeely's solicitors' failure to seek and obtain any written record of the High Court proceedings in which he was jailed, at the time they sought an immediate appeal over that decision to the Supreme Court.


He said: "The court feels compelled to express in the strongest terms its dismay and anger that, in a matter of such importance to the proper administration of justice, and regardless of the ultimate outcome of the appeal, such a failure should have occurred."


There was "no justification" for this and an apology belatedly offered by Mr McFeely's solicitors, during the hearing of the application for costs, was "casual, self serving and disingenuous", he said.


The judge said the city council, who had brought the original proceedings over the safety defects, was entitled the costs of a number of hearings, in which the court was monitoring Mr McFeely's promises to remedy the defects, upto and including November 4, 2011. 


In awarding  costs to the council, the judge said he had regard to both admissions by Mr McFeely of serious defects in Priory Hall and to the multiple adverse findings made by the High Court against him and his company Coalport (in liquidation).


However, he said, in relation to the costs of the hearing on the day he jailed Mr McFeely (November 17, 2011), he would make no order which means both sides must bear the expense of that day.  He said this was because, along with the failure of Mr McFeely's lawyers to obtain a written record of the High Court proceedings before going to the Supreme Court to seek to appeal, the city council failed to attend the Supreme Court that afternoon even though it had been put on notice that an application  (to appeal) would be made.


Mr McFeely's appeal against the High Court decision jailing him for contempt was successful when the Supreme Court, last July, ruled he could not have been held to be in breach of an undertaking to carry out remedial works because he had been ordered off the site by the High Court.


As well as upholding his appeal, the Supreme Court ordered the issue of costs for the High Court hearings should go back before that court.   The city council opposed his application for costs and also sought its own costs against him.

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