Differential Costs Orders and the importance of issuing proceedings in the correct court

The recent judgment of Mr Justice Simons in Anna Kolton v Paramount LTD trading as Esplanade Hotel is a notable one for both insurers and business owners as it contains welcome commentary on quantum and the duty on plaintiffs to issue proceedings at the appropriate court level.

The judgment also reiterates that a plaintiff must prove negligence on the balance of probabilities, and it is not sufficient to simply prove that an injury has been suffered.

Kennedys acted for the defendant.


The plaintiff alleged she suffered a serious scalding injury to her upper back and left shoulder after the kettle in her hotel room “burst” while she was making a cup of tea. She alleged the bursting reaction occurred after an accumulation of limescale blocked the filter in the spout of the kettle, resulting in a build-up of pressure.

Liability was denied by the defendant, who argued that there was no evidence of a limescale build-up at the joint engineering inspection and that, regardless of this, the kettle was not sealed to the environment, meaning the type of reaction described by the plaintiff was not possible, even if the spout filter had been blocked as alleged.



The High Court preferred the evidence of the defendant’s engineer and therefore dismissed the claim. Mr Justice Simons noted that the plaintiff had confirmed in her cross examination that she had no issues when using the kettle earlier the same day whereas the water would have poured “sluggishly” if there had been a blockage in the spout as alleged.

The judge held that in order to succeed, a plaintiff must establish negligence on the part of the defendant as well as a causal link between that negligence and the injuries suffered, and it was not sufficient to simply show that an injury had been sustained. Significantly, he also held that it was not necessary for the court to determine what had caused the plaintiff’s injuries in circumstances where negligence had not been proved on the balance of probabilities.


Mr Justice Simons also noted that, despite inspecting the injured area on two separate occasions, he could not discern any area of discolouration or “other indication of the scalding incident”. Further, he could not understand why the claim had been brought in the High Court rather than the Circuit Court in circumstances where he would have valued the injury below €30,000.

Of particular importance, the judge held that it is in the public interest that claims are brought in the lowest court having jurisdiction to determine them, to ensure the proper and efficient administration of justice and to minimise costs.

He held that any plaintiff who fails to do so runs the risk of a differential costs order being made against them.


The judgment confirms that plaintiffs who issue proceedings in the incorrect jurisdiction run the risk of a Differential Costs Order being made.

The court’s comments on liability underline that plaintiffs must prove negligence on the balance of probabilities, and it is not sufficient to simply demonstrate that an injury has been suffered.

It is also notable that the trial judge invited submissions on quantum from both parties prior to delivering his judgment, notwithstanding the fact that the proceedings were issued prior to the commencement of the Judicial Guidelines on Personal Injuries. This suggests the growing influence of these guidelines on personal injuries claims.

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