CED Construction Ltd v First Ireland Risk Management Ltd

• Jurisdiction: Ireland
• Judge: Mr Justice Max Barrett
• Judgment Date: 17 October 2017
• Neutral Citation: [2017] IEHC 603
• Docket Number: 2013 No. 6175 P
• Court: High Court
• Date: 17 October 2017

[2017] IEHC 603

THE HIGH COURT

Barrett J.

2013 No. 6175 P

IN THE MATTER OF C.E.D. CONSTRUCTION LIMITED (IN LIQUIDATION)

BETWEEN:

C.E.D. CONSTRUCTION LIMITED

Plaintiff

– and –

FIRST IRELAND RISK MANAGEMENT LIMITED

Defendant

Practice & Procedure – Costs – Functus officio – O.99, r.(5) of the Rules of the Superior Courts 1986 – Summons to tax – Practice Direction HC71.

Facts: The present application was filed by the plaintiff seeking an order on account of costs pursuant to Practice Direction HC71 of the High Court. The defendant was supposed to pay the costs of the substantive action to the plaintiff but the amount of the costs could not be agreed upon.

Mr. Justice Max Barrett refused to grant the order sought by the plaintiff. The Court stated that when an order had been issued and the Court became functus officio, the costs might be dealt thereafter as per o.99, r. (5) of the Rules of the Superior Courts 1986. The Court held that the plaintiff had issued a summons to tax and thus, there was no delay in the present case that would warrant the making of the order asked for.

JUDGMENT of Mr Justice Max Barrett delivered on 17th October, 2017.

1 The dispute that is the subject of the above-titled proceedings was settled between the parties on 4th February, 2016. Pursuant to the terms of settlement and the related, perfected court order of the same date, the costs of the action were to be paid by First Ireland to CED Construction on the basis of a one-day hearing. It is alleged that despite various attempts being made, inter alia, by the respective parties' cost accountants, the parties have been unable to agree the amount of the costs payable. So, pursuant to notice of motion dated 3rd July, 2017, CED has sought an order on account of costs pursuant to Practice Direction HC71 of the High Court, dated 28th March, 2017. That Practice Direction provides as follows:

'In view of long delays in the taxation of costs, the attention of practitioners is drawn to the provisions of Order 99, rule 1B (5).

I direct that in all cases where there is no dispute as to the liability for the payment of costs and in any other case which a judge thinks appropriate, an order may be made directing payment of a reasonable sum on account of costs within such period as may be specified by the judge pending the taxation of such costs. Such orders may be made on an undertaking being given by the solicitor for the successful party that, in the event of taxation realising a smaller sum than that directed to be paid on account, such overpayment will be repaid.

This practice direction shall come into effect on Monday, 24th April, 2017.'

2 It does not appear from the court's reading of the Rules of the Superior Courts 1986, as amended ("RSC"), that there is, in fact, an O. 99, r.1B(5), the reference to which in Practice Direction HC71 must surely be to O. 99, r.5.

3 What is O. 99, r.(5) and what does it provide? Order 99, rule (5) is a rule of the superior courts, which rule is established by secondary legislation, specifically the Rules of the Superior Courts (Costs) 2008 ( S.I. No. 12 of 2008), a statutory instrument made, pursuant to primary legislation, by the Superior Courts Rules Committee with the concurrence of the Minister for Justice, Equality and Law Reform. That statutory instrument provides in para. 1(iii) for the substitution for the then r.5 of, inter alia, the following:

'5.(1) Subject to sub-rule (4A) of rule 1, costs may be dealt with by the Court at any stage of the proceedings or after the conclusion of the proceedings...'.

[Emphasis added].

4 As the High Court observed in Philpott v. Irish Examiner Limited [2016] IEHC 62, para. 8:

'The great strength of the common law is that so many judges have said so much; the great weakness of the common law is that so many judges have said so much. Either way, to borrow from Sati, there comes a time for everybody when words and reason become a great...