UCC faces multi-million legal costs over failed court case

ESB granted full costs of legal battle over liability for flooding on college campus

University College Cork: hit by flooding in 2009.  Photograph: Matt Kavanagh

University College Cork: hit by flooding in 2009. Photograph: Matt Kavanagh


University College Cork is facing a legal costs bill running to millions of euros after the Court of Appeal granted the ESB full costs of the legal battle over flooding on the college campus.

A stay on the costs order applies while UCC, which brought the case on behalf of its insurer Aviva, decides whether to seek permission from the Supreme Court for an appeal over the ruling on liability for the flood damage.

The Court of Appeal ruled on Tuesday the ESB has no liability for extensive flood damage to 29 buildings on the UCC campus after floods affected large parts of Cork city in late 2009.

The three judge court overturned High Court findings the ESB was 60 per cent liable in respect of flooding and warnings.

The disputed findings were made in October 2015 after a 104 day case, the first in Ireland to fully test the liability of a dam operator.

When the case returned to the Court of Appeal on Wednesday to address costs issues, the court granted the ESB its full costs against UCC but put a stay to allow the university whether to seek a Supreme Court appeal.

Paul Gallagher SC, for UCC, had asked the court to reduce the costs by 10 per cent because the university had won an aspect of the appeal relating to the buildings which issue took up nine days in the High Court.

David Hardiman SC, for ESB, opposed that application and argued it was not possible to separate out the costs.

Giving the costs ruling, Court of Appeal president Mr Justice Sean Ryan, sitting with Ms Justice Mary Irvine and Ms Justice Máire Whelan, said the claim brought before the court by UCC was held to be unfounded.

While the issue referred to was decided in favour of UCC, it had to be seen in the context of the claim as a whole, he said.

In its judgment on the main case, the Court of Appeal said the High Court judgment, if it was allowed to stand, would represent a “significant alteration” in the existing law of negligence and nuisance that would be contrary to the statutory mandate of the ESB in respect of electricity generation and would “not be consistent with reason and justice”.

The damage arose “from a natural event”, ESB did not cause the flooding of UCC’s buildings and it had no legal duty to avoid unnecessary flooding, the court ruled.

In a claim on behalf of its insurer Aviva, UCC had 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.

Aviva sought €20 million damages for losses at UCC, plus another €14 million for losses suffered by other property owners.

The ESB denied liability and argued the existence of the dams had reduced the level of water that came down to the university.