Higgins v Coleman: A Cautionary Tale on Expert Evidence and Costs Consequences

The High Court has departed from what was descried as the normal default rule of granting costs to the successful party in litigation.  In Higgins v Coleman and Motor Insurers’ Bureau of Ireland [2026] IEHC 144, Mr Justice Micheál O’Higgins considered when a successful litigant might not recover all his or her costs or be forced to pay costs to the defendant.

Background

The proceedings involved a personal-injury claim arising from an incident in Carrigtwohill, County Cork in 2020.  The plaintiff claimed that she was struck by the first defendant’s van, something which was disputed by the first defendant.  The plaintiff made a claim for loss of earnings based on an expert accountant’s report for, in the words of the learned trial judge, “a whopping €1.752 million”, with €1.4 million of this claimed for loss of earnings and €342,602 claimed for the loss of capital appreciation of properties owned by the plaintiff and her husband which had to be sold. The plaintiff contended that she was unable to fulfil her role as manager of those properties as a result of her injuries. The 65-year-old plaintiff claimed that she would have continued this role until she was 85. 

Following a five-day trial in which liability was fully contested, the judge found in favour of the plaintiff, awarding her a total of €170,564.  Describing the loss-of-earnings claim of €1.4 million as “wholly unreasonable, excessive and unrealistic”, the trial judge awarded the plaintiff only €60,000 for that portion of her claim, less than 5% of the amount claimed. The judge noted that some aspects of the plaintiff’s expert accountant’s evidence were “concerning” and that his report amounted to a “wish list”. The judge said that “[i]t is of no assistance to the court if an expert simply acts as a mouthpiece for their client”. 

Costs

The normal rule in litigation in Ireland is that the unsuccessful party pays the successful party’s costs unless there is justification for departing from that rule.  Although the plaintiff succeeded in her loss-of-earnings claim, the defendants argued that approximately two days of the five-day hearing were taken up with evidence relating to that portion of the claim and the defendants argued that they were entirely justified in contesting what was held to be an excessive claim.  The defendants sought to rely on section 169(1)(b) of the Legal Services Regulation Act 2015 to argue that, although the plaintiff succeeded, it was “reasonable… to raise, pursue or contest one or more issues in the proceedings.”

In his judgment on 23 January 2026, Mr Justice O’Higgins considered three questions:

1.Should the normal default rule of granting costs to the successful party be departed from?

In answering the first question, the trial judge noted that, while the loss-of-earnings claim was found to be seriously flawed and excessive, it was not disallowed in its entirety.  After some consideration, the judge found that the unusual collapse of the plaintiff’s loss-of-earnings claim had to be reflected in the costs orders made.

2.If the default rule should be departed from, should this be limited to reducing costs recoverable by the plaintiff or should there be a positive award of costs in favour of the defendants?

Taking into account that the plaintiff’s loss-of-earnings claim was not held to be rejected in its entirety, the judge found that it would be disproportionate to make a positive costs order requiring the plaintiff to pay costs to the defendants regarding the loss-of-earnings issue.

3.Is there a way of tailoring the costs order which would sufficiently reflect the court’s judgment and the justice of the case?

The judge weighed up all the circumstances and found that the plaintiff should not be entitled to recover the costs of one of the five days of the trial and should not be entitled to recover the costs of her expert accountant’s report.  The judge declined to disallow the costs of the two days spent dealing with that aspect of the claim, saying that “some aspects of the earnings and past losses evidence needed to be explored anyway”, even if the quantum of the claim was reduced to a small fraction of what was claimed.

Conclusion

The judgment illustrates that succeeding on liability alone does not guarantee that a plaintiff will recover his or her costs and that advancing what are found to be excessive claims for special damages or financial loss may result in a plaintiff being penalised when it comes to costs orders.

The case begs the question whether a suitable lodgment (payment into court), tender offer or Calderbank offer (assuming none was made) might have led to a different outcome when it came to the trial judge’s consideration of costs.
The judgment stands as a stark warning to plaintiffs of the potential adverse costs consequences of putting forward quantification of loss which is found to be “wholly devoid of credibility” even though they may succeed on liability. 

For more details contact, Shane Neville, Partner, or Laura Keane, Managing Associate, from the Litigation and Regulation at Byrne Wallace Shields LLP.