A HIGH COURT judge has awarded Nikita Hand the costs of her civil action against Conor McGregor in which a jury found that he sexually assaulted her in a Dublin hotel in 2018.
Mr Justice Alexander Owens made no order in relation to costs of the second named defendant, James Lawrence, who the jury found did not assault Hand, meaning each side will pay their own costs accrued from that claim.
The judge said the costs, which are estimated to be in excess of €1 million, would be made on the normal party-party basis, and not on a solicitor-client basis, the highest level possible, that had been sought by Hand’s side.
Last month, McGregor was deemed liable for the assault on Hand in the Beacon Hotel on 9 December 2018, with the jury awarding the victim over €248,000 in damages.
When broken down, the jury awarded €60,000 in general damages, damages for loss of earnings of €135,026 and agreed medical expenses of €4,557.64.
It also awarded €50,000 for loss of future earnings, with special damages awarded in total of €188,603.60. No aggravated damages or exemplary damages were awarded. The total damages awarded were €248,603.60.
Following the civil trial, McGregor indicated he will appeal the decision.
In his ruling this afternoon, Mr Justice Owens said it would be “completely inappropriate” to award Lawrence any of his costs even though he succeeded in his defence.
He said the jury believed Hand and did not believe McGregor or Lawrence, who he said were “in lockstep with each other and have remained in lockstep with each other”.
He said it was “quite apparent” to the jury that the evidence given by Hand “could not in any way sit with the evidence” given by McGregor and Lawrence.
He said there was “no middle ground available in my view to the jury on this” and that it was “perfectly obvious” from their finding that they rejected the evidence of McGregor and Lawrence.
Mr Justice Owens said it was “a most singular and peculiar case” in which the defence put forward by McGregor relied on what Lawrence said happened on the day in question.
He said it was difficult to see how there could be any separate legal costs incurred by Lawrence in respect of any solicitor.
He said that Lawrence was “clearly a man of modest means” and that McGregor was “footing” his legal bills.
He said that while he had reservations about whether Lawrence should have been sued, “the fact of the matter is Mr Lawrence and Mr McGregor went with one narrative”.
The judge disagreed that the awarding of damages by the jury cast any light on their decision and said that they were told during the civil trial what they were entitled to award and to be moderate when assessing damages.
He also said that the fact that the jury did not award aggravated or exemplary damages to Hand “did not cast light on their previous findings of liability”.
He said he did not accept the suggestion by counsel for McGregor and Lawrence that Hand should have launched an action for conspiracy against Lawrence. “This was a case which looked at all of the evidence in the two actions together, including that of the plaintiff and the defendant,” he said.
“The case against Mr Lawrence failed because they concluded he didn’t have sex with Ms Hand,” the judge said. “That conclusion of fact when arriving at a verdict against Mr McGregor had to be the same in both actions.”
He said Lawrence was “entirely successful” in defending his claim against Hand “but not for the reason advanced in his defence”.
Mr Justice Owens said he did not believe this was an appropriate case to award costs against McGregor on a solicitor-client basis, which is the highest level possible.
The judge said it was his view that McGregor was entitled to put his case and that the case was put fairly and effectively by his legal team. He said it did not involve such a departure to award solicitor-client costs.
“This was always going to be a case where one side or the other would be believed on balance or disbelieved,” he said.
He said Hand established that she should be believed based on the jury verdict.
He said he did not consider McGregor’s interjection during his cross examination or the posts shared via his social media “as departures which would justify an award of costs at solicitor-client basis”.
In the posts, which were shared via McGregor’s social media account in the days following the jury’s verdict in the civil case, the court was described as a kangaroo court. This was referenced by counsel for Hand this morning, who deemed it an attempt at “scandalising the court”.
In his ruling, Mr Justice Owens said that scandalising the court is a contempt of court.
He said the jury were rightly concerned about being surreptitiously photographed during the civil trial and that they felt under great pressure.
He said that the social media posts “on the face of it” could be construed as an attack on the jury and “that cannot be tolerated”.
Mr Justice Owens said he has not decided what he was going to do in relation to the social media posts. He said he could if he wanted to begin to institute a proceeding against McGregor, which could find that he is in contempt of court and could result in him paying a fine.
“Mr McGregor is a very rich man and can afford to pay a fine,” he said.
He said the social media posts “was, to say the least of it, something highly irresponsible to do”.
The judge put a stay on the orders in the case until 16 January.
This morning, John Gordon SC, for Hand, told Mr Justice Alexander Owens today that Hand’s side are looking for McGregor to pay the entirety of the costs of the court proceedings taken by her.
He told Mr Justice Owens that the application is for the order of costs on solicitor and own client basis. He said “this honourable court has a wide discretion to award costs” against McGregor in entirety, owing to his conduct before and during the trial. He said it was also reasonable to pursue costs against Lawrence.
He said that on a solicitor and client basis, the plaintiff can expect to recover 90% of their outlay.
Gordon said that this was precisely the type of case where the plaintiff can be awarded the entirety of her costs, and referred to the conduct of both defendants before, during and after the trial.
Gordon said both defendants engaged the same firm of solicitors “within days”, and cited that McGregor had paid all of Lawrence’s legal costs, which he confirmed during his evidence. He said both defendants delivered a joint defence, relying on the second defendant to support the first defendant’s account.
He said it was the pair’s claim in their pleadings that the case was brought against McGregor maliciously and maintained in bad faith. He said neither of them pursued this at trial.
He said it was the pair’s case that the claim was tantamount to extortion, which also “was not pursued by either defendant at trial” and they did not produce any evidence in relation to it.
He said that in view of the content of the joint defence which did not proceed, it amounts to “an abuse of the courts process by the defendants”.
Hand had testified to the court that she had been using a tampon on the day in question as she had her period. A paramedic also testified that Hand’s chief concern, when she was receiving medical treatment, was that her tampon had been pushed up too far.
Gordon said McGregor then introduced an “alternative story” that had not been advised in his pleading and was not put to Hand during her cross examination, that there was no tampon when he was with Hand.
At Mr Justice Owen’s suggestion that this was hearsay, Gordon said: “It’s not even hearsay. He invented the story.”
“He said my client had taken a swan dive into the bath and then he gave evidence that there was no tampon. That was entirely new evidence to my client,” he said, adding that it came out in direct evidence and again in cross-examination.
Gordon said Lawrence “diverted from his defence as pleaded”.
“I think this is of some considerable importance because obviously as the case ran, it appeared clear that Mr Lawrence was attempting at all times as best he could to support McGregor.
He said during his evidence, Lawrence “actually falls in line with Mr McGregor’s new version of events and repeats Mr McGregor’s version of events”.
“He repeated the reference to ‘there was no tampon’. He repeated the evidence of Mr McGregor that there was no bruising, no scratch on her breast. It was repeated almost verbatim from Mr McGregor’s evidence,” Gordon said.
He said that the rational explanation for the jury’s verdict is that they didn’t believe either of the defendants.
“I say that quite deliberately because the verdicts are what they are, but when you just look at them, given that they didn’t believe Mr McGregor, it has to follow that they didn’t believe Mr Lawrence either because he was the man who was supporting Mr McGregor’s case.
“So in my submission, logically, the jury probably decided there was no sexual intercourse between Mr Lawrence and my client,” he said, adding that they were entitled to come to that conclusion based on the evidence they heard.
“Given that the jury didn’t believe Mr McGregor, it has to follow that they didn’t believe Mr Lawrence, and if they didn’t believe Mr Lawrence, they didn’t believe his story at all.”
Gordon said he was not seeking costs against Lawrence “even though I could”.
He said he was happy to take all of his costs against McGregor, which he believes is “entirely appropriate” as the “entire defence has been run between the two of them”.
Gordon also referenced posts that were shared via McGregor’s social media following the jury’s verdict.
Gordon said McGregor “utilised social media to disparage the court and by implication, the jury’s verdict”.
He said it was “significant text”, and “using the old language of scandalising the court, that is precisely what it was intended to do”.
Mr Justice Owens said that if the editor of the Irish Times published something similar, “he might find himself in here and be fined very heavily”.
Gordon told the court that McGregor put these posts out into the public. He said McGregor “described this as a kangaroo court, which is a direct insult to the jury and I believe that is a matter the court should not let go”.
When Mr Justice Owens asked if he should take account of this through costs or through a hearing concerning scandalising the court, Gordon said he believed the court could usefully take care of the matter through costs, but he said that it was a matter that the court can decide to pursue further if it sees fit.
Mr Justice Owens said he appreciated the point in relation to the jury.
“The situation in relation to the jury is they were very concerned in relation to the photographs issue right throughout the trial,” the judge said.
He said it was a “most unsatisfactory situation to put it at its most neutral, that the litigant would go and attack the jury and accuse them of disregarding their oath”.
Remy Farrell SC, for McGregor, opposed the application for costs at the highest level. He argued that the normal costs rule – which sees the winning party awarded costs by the party found liable – should apply in this case.
He said that contrary to Gordon’s claim, the court did not have the discretion to award wider costs and he said that Gordon’s “minute theorisation and speculation” of what the jury decided in their verdict “is simply impermissible”.
Farrell told the court that the reason they were here “derives solely from what is an absolutely extraordinary decision by the plaintiff and her advisers to proceed against Mr Lawrence”.
He said that Hand said during her cross-examination that she believed “and she had always believed that she never had sex with Mr Lawrence”.
He submitted that this case should never have been pursued “and if Hand finds herself in difficult condition in relation to costs, she should have recourse to her legal advisers”.
He said if it was genuinely Hand’s case that McGregor and Lawrence had engaged in a “concoction of conspiracy”, it was “open to the plaintiff to pursue that”. He also said that any reference to a conspiracy between McGregor and Lawrence was not raised in the pleadings.
“Those cases could have been tried together, but for reasons which are inexplicable, the plaintiff chose to pursue a case of rape which she never believed. I say that’s improper, it should never have happened.
“Why is it that costs follow the event in the case of a jury trial? A jury trial is a choice that litigants make. One of the consequences is one ends up with an unreasoned judgement,” he said.
He said that while it is open to any plaintiff to opt for trial by judge, it is not open to a plaintiff to then subsequently come to court and invite the judge to “parse” the result of the case – referring to the fact that the jury found against McGregor but not against Lawrence.
Asked by the judge how this affected McGregor, Farrell said it arises because the plaintiff’s side is “looking for Mr McGregor to award the entirety of the plaintiff’s costs rather than only the plaintiff’s costs in the case against Mr McGregor”.
He described the “modest” award of damages as “remarkable” and said that the court was bound by the verdict and was not entitled to speculate.
Mr Justice Owens remarked: “This is the most peculiar case that I’ve ever encountered in relation to this sort of thing.”
He said that one of the things that struck him about the case was that “either the jury believe Mr McGregor and Mr Lawrence about what happened on the balance, or rejected them on the balance and they believed what Ms Hand said about it”.
Farrell disagreed. “Mr Gordon invited the jury expressly to consider that this was a concoction of conspiracy and invited them to award costs on that,” he said.
He questioned: “If the jury did believe Mr Lawrence never had sex with Ms Hand, how could they have failed to award aggravated damages?”.
He said the idea “that the jury verdict is to be interpreted as a conclusion that Mr Lawrence did not have sex with Ms Hand is utterly perverse. It’s not available.”
In respect of the posts shared via McGregor’s social media, Farrell said they had “nothing to do” with costs. He said there were “many unhappy litigants who express displeasure” with a court outcome, adding: “Why is it that the plaintiff should get a windfall in relation to it?”.
John Fitzgerald SC, for Lawrence, agreed with much of Farrell’s submission. He told the court that his client should be awarded costs against Hand.
He said the jury found that Lawrence did not assault Hand, and said his client had been arrested in relation to the matter and had been interviewed four times by gardaí.
Fitzgerald said that Hand pleaded a case that she had no memory of having sex with Lawrence, but pursued a case against him for assault.
He said Hand then came to court “and for the first time, she said ‘No, it was made up’ and, more importantly, ‘I always believed it was made up’.”
During her cross-examination, when counsel put Lawrence’s version of events to Hand, she repeatedly told the court that she believed that it was “just another made-up story”.
When asked at the time by Fitzgerald if she had always believed Lawrence’s claims were a made up story, Hand replied “Yeah”.
Fitzgerald told the court this afternoon that this meant that Hand either “made this case to her legal advisers and they sued Lawrence entirely wrongly, or else she came to this view and never told anybody”.
He said that Hand had the option to pursue the claim that Lawrence’s evidence was “a made up story” in a separate case, but decided not to.
He said to say that the jury either believed Hand in total or believed Lawrence and McGregor in total is “impossible to reconcile with the evidence”.
Fitzgerald said that one way the court can interpret the decision of the jury is by looking at the evidence the court gave them.
He said the jury were told that they were entitled to award punitive damages if they believed McGregor and Lawrence “got together to concoct a story”, but that they did not.
He said that if the court looks at the verdict without looking at the evidence, “the only reasonable interpretation” is that the jury “did not believe that there was a made-up story”.
“Mr Lawrence should be awarded his costs. An action was brought against him and failed,” he said.
He said the case that was brought against him was for an allegation that Hand did not believe in.
In a statement this afternoon, the Dublin Rape Crisis Centre welcomed the decision by Mr Justice Owens to award costs in favour of Hand.
“This decision will reinforce the public’s belief that justice has been done in this case. Although for Nikita Hand, this case was always about the verdict, it was also important that both symbolically and financially, justice didn’t give with one hand and take away with the other,” chief executive Rachel Morrogh said.
She said the costs awarded “underscore the significant consequences arising from Nikita Hand’s courage and her brave legal action” and she thanked Hand on behalf of the DRCC “for holding the torch of justice high since 2018, despite efforts to extinguish it”.
“We hope that blaming, shaming and discrediting victims will become something of the past and that this trial marks a turning point where survivors can hope for a better experience through the court process,” she added.
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