About this case:

• Citation:
  [2024] IECA 34
• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Ms Justice Ann Power

Delivering judgment for the Court of Appeal, Ms Justice Ann Power considered that “it cannot be the case that in adversarial litigation, a party who fails to ‘row in’ with an application or who makes a submission that is not supportive of an opponent’s, should thereby carry an exposure on costs if, ultimately, that party’s submission is accepted by the decision-maker. Such a proposition would have a most chilling effect on freedom of argument in the pursuit of fairness in litigation.”

Background

A dispute arose between the appellant and his former solicitor, Mr Winters, concerning legal costs incurred during family law proceedings. Following a hearing on 2 November 2021, the legal costs adjudicator reserved his decision until 2pm on 19 November 2021. The appellant did not attend until 3.30pm, at which stage the matter had concluded.

The appellant inquired as to the decision, and the adjudicator confirmed that Mr Winters’ bill of costs was found to be reasonable, with a slight reduction to one item claimed. The appellant indicated his intention to appeal, and the adjudicator informed him that he could make an application under s.160 of the Legal Services Regulation Act 2015, which permits a consideration of the decision if an application is made within 14 days of the date upon which the determination is furnished.

On 22 November 2021, the appellant requested a copy of the adjudicator’s determination from Mr Winters’ legal costs accountant, Mr McCann, and on 29 November 2021, Mr McCann indicated that he would send the appellant the certificate of adjudication as soon as same was received.

On 3 December 2021, the lodged objections to the determination with the adjudicator and requested a copy of his report. The adjudicator required the making of a formal application for an extension of time and following a hearing on 16 December 2021, he determined that he did not have jurisdiction to extend time as the 14-day period had expired on 3 December 2021 without a request for consideration being made.

Having received the certificate of determination on 1 February 2022, the appellant took the position that the 14-day period began to run from that date and he requested a consideration of the determination. That application was determined against the appellant by the adjudicator on 24 February 2022.

The High Court

The appellant obtained leave to apply for judicial review on 21 March 2022 seeking numerous reliefs as against the adjudicator’s decision. By the time the matter came on for hearing, both the appellant and Mr Winters, the notice party, had agreed the reliefs, with the only outstanding matter being the question of costs.

Accepting that he was not entitled to seek costs against the adjudicator, the appellant asserted that Mr Winters should pay costs due to his “pivotal role” in bringing about the decision of February 2022, by virtue of his conduct at the hearing in December 2021.

Mr Justice Mark Heslin found no basis for attributing responsibility to Mr Winters for the judicial review proceedings which ultimately issued. Noting that two issues had arisen at the December hearing, being the point that time had run from and the adjudicator’s jurisdiction to extend time, the court determined that Mr Winters had made submissions only in respect of the second issue, with which the court agreed.

The trial judge was satisfied that the notice party had not played any role in relation to the February decision, which had been made exclusively by the adjudicator, with no submission from Mr Winters and that he had not been asked to make any submission.

The court noted that Mr Winters had offered to agree with the appellant that no order as to the costs of the proceedings would be made, an offer rejected by the appellant leading to a contested costs hearing for half a day in the High Court.

Accordingly, the judge granted the notice party his costs.

The appellant appealed, contending that the trial judge had inter alia erred in relation to the costs award to the notice party, had wrongly held that the notice party did not bring about the judicial review proceedings and that the notice party did not support his application at the December hearing.

The Court of Appeal

Ms Justice Power disagreed that “as a matter of reasonable inference” Mr Winters must have opposed or contested his claim concerning the starting point of the 14-day time limit, finding it “equally plausible” that the notice party had adopted a neutral stance on when, as a matter of fact, the clock had started running, but arguing that irrespective of that, s.160 does not provide for an extension of time.

The judge opined: “To the extent that the appellant takes issue with the findings made by the trial judge in respect of the December 2021 hearing, I am satisfied that his complaint is misplaced. That hearing did not concern the subsequent decision of 24 February 2022 which is the only decision that is impugned in these proceedings.”

The Court of Appeal continued: “In any event, it cannot be the case that in adversarial litigation, a party who fails to ‘row in’ with an application or who makes a submission that is not supportive of an opponent’s, should thereby carry an exposure on costs if, ultimately, that party’s submission is accepted by the decision-maker. Such a proposition would have a most chilling effect on freedom of argument in the pursuit of fairness in litigation.”

Moving to consider the alleged “inaction” on part of Mr Winters in respect of the February decision, the court found: “Until the Adjudicator’s decision of 24 February 2022 issued, neither Mr. Kenny nor Mr. Winters was aware of how the request for consideration might be treated. It was possible that the Adjudicator, having given some further thought to the matter, could have acceded to the request. The fact that he did not, does not entitle Mr Kenny to seek to attribute responsibility to the Notice Party for a decision that was beyond his control.”

Evaluating whether the notice party bore “some responsibility” for the adjudicator’s impugned decision, Ms Justice Power agreed with the parties that O’Donovan v. County Registrar for Cork & Anor. [2021] IEHC 307 applied. The appellant argued that only where a notice party has borne “no responsibility” for the outcome of a subsequently impugned decision, can an order for costs be avoided.

Finding that Mr Winters bore no such responsibility, the court emphasised that “one must not lose sight of the fact that the decision Mr. Kenny sought to impugn was the one made by the Adjudicator on 24 February 2022. He is not entitled, now, to attempt to ‘retrofit’ that decision with the events that occurred at the earlier hearing (or his hearsay version thereof) or to shoehorn those events into the decision that ultimately became the subject of judicial review proceedings.”

The court also considered it “instructive” that upon receipt of the proceedings, the notice party did not defend the adjudicator’s decision, but rather agreed the reliefs which were mostly directed against the adjudicator.

Concurring with the trial judge’s conclusion that the adjudicator bore responsibility for the impugned decision, the court recognised: “The fact that the Adjudicator agreed to revisit the decision he made on that point is not a reason to burden the Notice Party with the costs of judicial review proceedings.”

Finally, the court considered that once the proceedings had been compromised, the notice party had made an “entirely reasonable offer” in respect of costs, which the appellant unreasonably rejected. Ms Justice Power considered that “the trial judge was well within his discretion in this case to award costs to the entirely successful party…”

Conclusion

Accordingly, the court dismissed the appeal.

Kenny v. Legal Costs Adjudicator (Barry Magee) & Anor [2024] IECA 34