About this case:

• Citation:
  [2024] IEHC 253
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Anthony Barr

Delivering judgment for the High Court, Mr Justice Anthony Barr considered: “At the end of the day, reality has to enter the equation. To proceed in a court which was higher than the one where the action should have been brought; where it would have been dealt with faster and cheaper; and then to present a bill for legal fees that was four times the amount of the damages recovered, was unrealistic. The amount of legal costs recoverable from a defendant, cannot in justice, be out of all proportion to the amount of damages actually obtained.”

Background

The applicant fell on a public footpath in Dungarvan and suffered personal injuries. He recovered judgment in the sum of €8,000 in the Circuit Court and was awarded costs on the District Court scale as against the second and third defendants.

The applicant’s bill in respect of his legal costs was €32,986.89, comprised of his solicitor’s fees of €19,414.44 exclusive of outlay and VAT, and counsel’s fees of €2,350.00 excluding VAT. Following a taxation before the County Registrar, the solicitor’s fee was reduced to €2,250 plus outlay and VAT, and his counsel’s fee was reduced to €800 plus VAT. This left a shortfall of €24,231.11.

The applicant was granted leave to proceed by way of judicial review. The applicant asserted that the District Court Rules Committee and the County Registrar acted in breach of s.17(4) of the Courts Act 1981 (as amended) which he argued as prohibiting the imposition of scale fees by any rules of court.

The High Court

Mr Justice Barr considered inter alia s.17(4), which states that “it shall not be lawful for rules of court to contain or impose any restriction on the amount of costs recoverable by any party from any other party in any action or other proceeding, but nothing in this subsection shall prevent the insertion in rules of court of a restriction on the amount of the costs recoverable which is identical with a restriction imposed by this section nor the fixing by rules of court of the amount recoverable by any person as and for the costs and expenses incurred by him in the doing of any specified thing in any particular form of action or other proceeding”.

The judge also examined s.141 of the Legal Services Regulation Act 2015, which specifies that a County Registrar, in taxing costs, shall have regard to the principles relating to legal costs specified in schedule 1 to that Act, including whether costs are reasonable by reference to factors such as the complexity and novelty of the issues involved in the legal work, the skill or specialised knowledge required and the time and labour expended.

The court also noted Order 53 of the District Court Rules (DCR) as amended by S.I.17/2014, which provides that the scales of costs scheduled to the DCR are the only lawful costs, and Order 66, rule 11 of the Circuit Court Rules (CCR) which states inter alia that in defended proceedings where the relief granted could have been obtained in the District Court, the applicant’s costs shall be those which would have been recoverable in the District Court, along with actual and necessary outlay as may be allowed, provided that the judge may withhold costs if of opinion that the case should have been prosecuted in the District Court.

Mr Justice Barr considered that “at first sight, the prohibition imposed by s.17(4) of the 1981 Act, is very stark. It prohibits any rules of court which contain or impose any restriction in the amount of costs recoverable by any party in an action or other proceedings. If the section ended there, the scale of fees provided for in the District Court Rules as set out in SI 17/2014, would fall foul of that prohibition.”

Considering the applicant’s submission that in imposing and applying the scale of fees in the DCR, the Committee and the County Registrar acted contrary to s.17(4), and that the County Registrar breached his duty tax the solicitor’s and counsel’s fees having regard to the matters in schedule 1 of the 2015 Act, the court found that s.91 of the Courts of Justice Act 1924 gave the Committee the power to make rules for practice and procedure in the District Court and so had the jurisdiction to make rules governing the recovery of costs.

Being satisfied that on a “proper construction” of s.17(4) the Committee could fix a scale for recoverable fees, the judge made reference to the principles of statutory interpretation articulated in Heather Hill v An Bord Pleanála [2022] IESC 43.

Highlighting the policy reasons supporting s.17 as enunciated in O’Connor v Bus Atha Cliath [2003] 4 IR 459, Mr Justice Barr opined: “It is clear from a reading of s.17 as a whole, that the section is designed to provide that only those costs that would be recoverable in the lowest court that had jurisdiction in the matter, are actually recovered by a successful party who has elected to proceed in a court of higher jurisdiction than was necessary.”

The court stated that “the point is that the action could have been brought in the District Court, where it is likely that it would have been heard with considerably less formality in terms of pleading and with less delay”, surmising: “The procedure in the District Court is designed to provide a fast and economic resolution of civil actions. I am satisfied that in these circumstances, the obtaining of a decree following a hearing in a defended case, comes within the description of “the doing of a specified thing”, as provided for in the proviso, or exception to the general prohibition on having scales of fees, as provided for in s.17(4).”

Emphasising that “it is entirely sensible that there be a scale of recoverable fees, which is applied across the board” and “enables people to know what level of legal costs they are likely to face if they are unsuccessful in a civil action heard in the District Court”, Mr Justice Barr found that it had not been established that the applicant’s constitutional right of access to the courts had been infringed by virtue of the size of the shortfall between the fees charged and those allowed, as the County Registrar had not declared that the bill of costs was reasonable.

The court concluded that contrary to the contention of the applicant, there was no evidence that the County Registrar did not have regard to the matters set out in schedule 1 of the 2015 Act.

Conclusion

Accordingly, the High Court refused the reliefs sought.

Nolan v. The County Registrar for the County of Waterford & Ors [2024] IEHC 253