Da Silva v Rosas Construtores S.A.
|Mr Justice David Keane
|01 June 2017
| IEHC 365
|[2012 No. 2012/9535P]
|01 June 2017
 IEHC 365
THE HIGH COURT
[2012 No. 2012/9535P]
Practice & Procedures – O. 99, r. 5 (1) of the Rules of the Courts – Revisiting order – Jurisdiction
Facts: The plaintiff sought an order for directing payment to them by the defendants of a reasonable account of costs. The defendants asserted that since the matter of costs was dealt by the Court in its final order, the Court had become functus officio.
Mr. Justice David Keane dismissed the application. The Court held that it had made the final order as to the costs on the specified date and none of the parties sought liberty to apply. The Court found that the present application was not a standalone application and did not stand apart from the terms of the final order. The Court held that it had become functus officio and thus, could not entertain the present application.
The plaintiffs move for an order pursuant to Order 99, rule 5 (1) of the Rules of the Superior Courts, as amended (“the RSC”), directing payment to them by the defendants “of a reasonable sum on account of costs…within such period as specified by the court.”
The application is unusual, if not unprecedented.
I gave judgment in the action and two related ones on 18 March 2016; . The three cases then adjourned to 8 April 2016 to enable the parties to consider the judgment. On the adjourned date, I heard argument on the form of order appropriate to reflect the terms of the judgment and, significantly, on the issue of costs. In addressing the costs issue, the plaintiffs prayed in aid the usual rule under O. 99, r. 1 (4) of the RSC that costs should follow the event. I reserved my ruling, delivering it one week later on 15 April 2016; .
Following upon that ruling, I made a final order in each of the three cases on the same date. In each, I ordered that the defendants were to pay the plaintiffs' reasonable legal costs of the action when taxed and ascertained in default of agreement, to include any reserved costs and the costs of discovery, with no stay on that part of the order in the event of an appeal. Thus, for the purposes of O. 99, r. 5 of the RSC, I dealt with the issue of costs at that stage of the proceedings.
Neither the plaintiffs nor the defendants sought “liberty to apply” and no such liberty was granted in the final order.
I am given to understand that the defendants have appealed aspects of the judgment in each case to the Court of Appeal and that a date has been fixed for the hearing of those appeals.
On 24 April 2017, the plaintiffs issued the present motion. It is grounded on an affidavit sworn by the plaintiffs' solicitor on the same date.
From the affidavits exchanged between the parties, the following facts are not in dispute. On or about 17 June 2016, the plaintiffs served a bill of costs on the defendants in each action. The taxation was first listed before the Taxing Master on 15 July 2016. On 26 and 27 September 2016, the Taxing Master heard submissions on Counsel's fees, and directed that the plaintiffs' solicitors furnish additional time sheets to the defendants in respect of their professional fees. On 29 March 2017, the Taxing Master issued an interim ruling on the fees due to the plaintiffs' accountants and interpreters and the matter was adjourned to 15 May 2017, the first of four consecutive days set aside for dealing with the taxation of the plaintiffs' solicitors professional fees.
That was the position when the present motion issued on 24 April 2017.
Precisely what occurred when the matter came back before the Taxing Master on 15 May 2017 is unclear. The defendants' solicitor swore an affidavit on 18 May 2017 in which he avers that he has been advised by the defendants' legal cost accountant that, after the taxation had been at hearing for half a day, the plaintiffs' solicitor and legal cost accountant successfully applied for an adjournment to await the outcome of a pending appeal to the Supreme Court against the decision of the Court of Appeal in the case of . The plaintiffs' legal cost accountant swore an affidavit on 19 May 2017, in which he avers that the Taxing Master was not satisfied to conclude the taxation, pending the determination of that appeal, implying that the Taxing Master adjourned the taxation ex proprio motu.
Order 99, rule 5 of the RSC provides, in material part:
“[C]osts may be dealt with by the Court at any stage of the proceedings or after the conclusion of the proceedings; and an order for the payment of costs may require the costs to be paid forthwith, notwithstanding that the proceedings have not been concluded.”
Practice Direction HC71 – Payment on account of costs pending taxation states as follows:
“In view of the 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 in 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.”
The present application relies upon the rule and the practice direction just quoted. To that end, the plaintiffs' solicitor has provided an undertaking in the terms stipulated in the practice direction.
The defendants submit that the Court is functus officio and has no jurisdiction to amend or alter the final order that it made on 15 April 2016. In advancing that argument they rely on the principles identified in three Supreme Court cases: v D.W. (No. 2). ; ; and
While each of those three cases provides authority for the same broad principle, the one most apposite is . It was an appeal to the Supreme Court from a decision of the High Court on an appeal by way of case stated from a decision of the Revenue Appeal Commissioner. The Appeal Commissioner (“the Commissioner”) had stated a case for the High Court on his decision in an appeal by a taxpayer company, Belville Holdings Ltd (“Belville”), against two assessments to corporation tax raised against it by the Revenue Commissioners (“the Revenue”). The question raised was whether the Commissioner had been correct in...
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Power v Kavanagh
...in the context of the same proceedings. This is clear from the judgment of this court (Keane J.) in De Silva v. Rosas Construtores  IEHC 365. 13 There, a final order of the court was made without liberty to apply and the plaintiff's solicitors subsequently sought by motion payment of ......