High Court: Application for payment on account of plaintiff’s costs in settled swine flu vaccine case refused

About this case:

• Citation:
  [2022] IEHC 174
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Alexander Owens

However, the High Court determined that it had no jurisdiction to make such an order due to the specific terms of settlement which had been entered into between the parties. The settlement stated that any dispute as to costs was to be referred to a legal costs accountant, whose decision would be binding.

Background

The plaintiff had previously issued personal injuries proceedings against the defendants for injuries sustained after receiving the swine flu vaccine as a child. There were dozens of similar cases taken in the Irish courts and, as such, the defendants sought to compromise each case based on the same settlement scheme.

The settlement scheme involved the defendants offering a sum of damages equivalent to 50 percent of the full value of the claim. Any disputes over the full value of a claim were to be determined by a mediator and, on appeal, to a retired Superior Court judge. The decisions were binding on the parties under the settlement agreement.

Further, the settlement provided for the plaintiff’s costs of the proceedings. The settlement set out categories of costs which were allowable and categories which were excluded. Any costs which occurred in implementing settlement terms (such as mediating or appealing a dispute) could be agreed, but in the absence of agreement the matter would be referred to a legal costs accountant. The decision of the costs accountant would be binding on the parties.

As a result of actions taken by the plaintiff’s solicitor post-settlement, an application was made to the High Court in the original proceedings for a payment on account to the plaintiff’s solicitor. The application was based on Practice Direction HC71, which provided that, where there was no dispute about liability as to costs, a court could order payment on account to a plaintiff’s lawyers. This Practice Direction was implemented owing to the delays in taxation for personal injuries cases.

Additionally, Order 99 Rule 2(5) RSC allowed the High Court to make an order for “payment of an amount in respect of costs forthwith, notwithstanding that the proceedings have not been concluded”.

High Court

Delivering judgment in the case, Mr Justice Alexander Owens held that the plaintiff was not entitled to a payment in the case. It was held that the terms of the settlement did not grant the court any further function in enforcing the agreement. The court noted that the settlement agreement could have contained express terms for payment on account of legal costs and enforcement, but it did not do so.

The court held that section 168(1) of the Legal Services Regulation Act 2015 did not assist the plaintiff because a court could only order costs that were “costs of or incidental to the proceedings”. It was held that section 168 did not confer jurisdiction to award costs in respect of legal expenses which do not relate to the pursuit of the claim.

In this regard, the court noted that most of the items claimed by the plaintiff’s solicitor related to work done to present a claim under the adjudication framework of the settlement. It was held that the costs incurred for the adjudication process were not costs that were “of or incidental to the proceedings” in the High Court.

The court stated that the settlement terms “do not provide that this action may be used as a vehicle for the purposes of enforcing the settlement”, unlike when an action before a court may be adjourned with liberty to re-enter for the purpose of enforcing settlement.

The settlement was silent on the status of the High Court proceedings, although the court held that the settlement agreement precluded further action being taken in the proceedings by the plaintiff. Instead, the plaintiff’s rights in the High Court had been replaced by the settlement terms for mediation and an appeal to the retired judge.

Accordingly, “the jurisdiction of this court on all such matters is ousted,” the court said. The wording of the settlement agreement could not be construed as amounting to a consent for a court order as to costs. It was held that the principle of judicial estoppel did not apply in the case, because the defendants’ position was not inconsistent with a prior position taken in the proceedings.

The plaintiff’s solicitors sought to rely on the interactions between the defendants and other claimants to ground the application, but the court held that this was not admissible to the present application. The court held that the plaintiff was essentially inviting the court to vary the settlement agreement, which was refused by the judge.

Conclusion

Concluding, the court stated: “As the settlement terms expressly provide an extra-judicial mechanism which establishes criteria for liability of the defendants to pay costs, a method of calculating those costs, and a contractual commitment to pay such costs as agreed or settled by the expert, there is no room for implication of any term into the contract which adds to or cuts across these arrangements.”

The application was refused.