ESB to pay UCC 60% of legal costs in case over flood damage

A High Court judge has ruled the Electricity Supply Board (ESB) must pay 60 per cent of University College Cork's (UCC) estimated several-million-euro legal costs in a case over extensive flood damage to a college buildings in 2009.

Mr Justice Max Barrett ruled ruled UCC is entitled to its costs against ESB, less a 40 per cent discount, for the 104-day legal proceedings.

In his 39-page costs ruling, the judge, who has previously criticised the cost of accessing the courts, referred to the “over-priced system of court-administered justice”.

If UCC was correct in arguing it should get 100 per cent of its costs based on the normal “costs follow the event” rule - which means costs go to the winning party - 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 moneyed parties”, it was unnecessary in this case to address the issue further, he said.

Last October, the judge found the ESB 60 per cent liable in nuisance and negligence for the flood damage and UCC 40 per cent liable in contributory negligence. He later heard arguments on costs before giving his ruling on Friday.

In claiming 100 per cent of its costs against ESB, the judge said 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.”

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 it was relatively simple to decide the costs issue, he said.

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 its campus.

Mr Justice Barrett ruled ESB, as dam operator, was 60 per cent liable in nuisance and negligence for the damage to UCC’s properties. UCC was 40 per cent 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.