Harte v Horan

JurisdictionIreland
JudgeMr. Justice Hogan
Judgment Date30 July 2013
Neutral Citation[2013] IEHC 410
CourtHigh Court
Docket Number[1998 No. 6076 P]
Date30 July 2013

[2013] IEHC 410

THE HIGH COURT

[No. 6076P/1998]
Harte v Horan
BETWEEN/
ESTHER HARTE
PLAINTIFF

AND

BRIGID HORAN
DEFENDANT

STATUTE OF LIMITATIONS ACT 1957 S11(6)(A)

CLARKE v GARDA COMMISSIONER 2001 IESC 201 2002 1 ILRM 450

CHOHAN v TIMES NEWSPAPERS LTD 2001 EWCA CIV 964 2001 1 WLR 1859

RSC O.42 r23

RSC O.42 r24

RSC O.42 r5

RSC O.42 r3

CONSTITUTION ART 34.1

MANNING v BENSON & HEDGES LTD 2004 IEHC 316 2004 3 IR 556

DOYLE v GIBNEY & ORS 2012 1 ILRM 194

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6

GILROY v FLYNN 2005 1 ILRM 290

DONNELLAN v WESTPORT TEXTILES LTD UNREP HOGAN 18.1.2011 2011/14/3448 2011 IEHC 11

PRIMOR PLC v STOKES KENNEDY CROWLEY 1996 2 IR 459

MCBREARTY v NORTH WESTERN HEALTH BOARD UNREP SUPREME 10.5.2010 2010/31/7749 2010 IESC 27

PRACTICE AND PROCEDURE

Costs

Application to strike out taxation of bill of costs - Application pursuant to inherent jurisdiction of court - Whether taxation statute barred - Requirement for amount of liability for costs to be ascertained prior to time commencing to run - Execution of judgments - Whether undue delay - Whether delay inordinate - Whether delay inexcusable - Whether balance of justice required taxation claim to be dismissed - Clarke v Garda Commissioner [2002] 1 ILRM 450; Chohan v Times Newspapers Ltd [2001] 1 WLR 1859; Manning v Benson & Hedges Ltd [2004] IEHC 316, [2004] 3 IR 566; Gilroy v Flynn [2004] IESC 98, [2005] 1 ILRM 290; Donnellan v Westport Textiles Ltd [2011] IEHC 11, (Unrep, Hogan J, 18/1/2011); Primor plc v Stokes Kennedy Crowley [1996] 2 IR 459 and McBrearty v North Western Health Board [2010] IESC 27, (Unrep, SC, 10/5/2010) considered - Statute of Limitations 1957 (No 6), ss 2 and 11 - Rules of the Superior Courts 1986 (SI 15/1986), O 42, rr 23 and 24 - Constitution of Ireland 1937, Art 34.1 - Relief granted (1998/6076P - Hogan J - 30/7/2013) [2013] IEHC 410

Harte v Horan

Facts Arising from a road traffic accident damages were sought. Owing to an oversight the bill of costs had not been sent for taxation and this only came to light a number of years later. When the plaintiff"s solicitor sought to re-enter the matter for taxation, the defendant"s solicitors opposed on the grounds that the application was either statute barred or by reason of undue delay. The defendant made an application to the High Court seeking an order striking out the taxation of the plaintiff"s bill of costs.

Held by Hogan J in granting the defendant"s application: The application to recover costs was not statute-barred. Time for the purposes of s. 11(6)(a) of the Statute of Limitations 1957 Act on the original judgment ran only from the date on which the judgment became enforceable. Absent a quantification of the sum due on the order for costs – such as by judicial measurement, agreement or taxation - the costs judgment was not yet enforceable. However although the root cause of the delay was human error, the ensuring eight year delay was inordinate and inexcusable. It would be prejudicial and unfair to the defendant to allow the taxation to proceed after such a lapse of time.

1

1. The plaintiff in these proceedings was a minor when she was injured in a road traffic accident near Tullamore, Co. Offaly on 21 st October, 1994. Proceedings were issued in 1998 whereby the plaintiff claimed damages for personal injuries. The proceedings were settled by means of a consent order made by Kearns J. on 11 th July, 2001, just prior to the hearing. The order provided for the routine taxation of the plaintiff's costs as part of that settlement. A critical detail - which helps to explain subsequent events - was that this particular settlement was one of two settlements (involving different parties) arising from the same accident

2

2. Following the making of the costs order, some desultory correspondence was exchanged in the present case between the respective solicitors for the plaintiff and the defendant in the course of the ensuing twelve months regarding this issue. The plaintiff's solicitor delivered a detailed bill of costs in each case on a without prejudice basis on 7 th August, 2001, and 28 th August, 2001, respectively. On 12 th December, 2001, the defendant's solicitor raised queries regarding the bill of costs following correspondence with their loss adjusters.

3

3. The correspondence appears to have petered out at that point. Absent agreement, however, on 1 st August, 2002, the defendant's solicitor forwarded a cheque to the plaintiff's solicitor in the sum of just under €13,000 by way of an endeavour to settle the costs issue. The plaintiff's solicitor maintains that he orally advised the defendant's solicitor of his dissatisfaction with the amount tendered, but this is emphatically denied by those who were then dealing with the matter on behalf of the defendant. No attendance or other record note of such a communication has ever been exhibited.

4

4. At all events, a similar cheque was sent on the same day in the related matter. The plaintiff's solicitor returned the cheque in the related matter on 4 March, 2003, saying in correspondence that the reductions proposed were unacceptable. At that point arrangements for the taxation of costs in the related matter were put in hand. The plaintiff's solicitor duly obtained 23 rd July, 2003, as the date for the taxation of the costs in the related action. The costs of the related action were, however, settled following an improved offer on the part of the defendants and a cheque for the discharge of these was obtained on 1 st August, 2003.

5

5. The plaintiff's solicitor avers that it was intended to pursue the same strategy with the present proceedings. Due, however, to an administrative oversight in his office no such steps were actually taken. The present proceedings and the related proceedings have a consecutive file numbers and, following the settlement of the latter proceedings, the file in the present proceedings was mistakenly included in the completed proceedings file when the latter file was being moved to storage.

6

6. The file in the present case next came to the attention of the plaintiff's solicitor in September 2010 when files in storage were being reviewed in his office prior to sending such files for shredding. It soon became apparent that, by reason of simple human error, these proceedings had not been sent for taxation. On 29 th September, 2010, the cheque - which had been originally sent as far back as August, 2002 - was returned by the plaintiff's solicitor and he confirmed that he would be proceeding to have the costs taxed. On 2 nd March, 2011, the defendant's solicitors wrote to the plaintiff's solicitor confirming that an application for taxation would be opposed on the grounds that the application was either statute barred on the one hand or by reason of undue delay on the other.

7

7. A summons to tax was issued on 20 th January, 2012, and a fresh bill of costs was served claiming the sum of €27,900. When the matter first came before the Taxing Master on 12 th March, 2012, the Taxing Master suggested that if the taxation were to proceed, the plaintiff would first have to make an application to renew the order on the basis that that order was over six years old. As it happens, no such application was ever made.

8

8. On 7 th August, 2012, the plaintiff s solicitor lodged a notice of re-entry before the Taxing Master. The matter was then listed before the Taxing Master O'Neill 30 th November, 2012, and again on 8 th January, 2013. The Taxing Master had sought written submission on the legal issues which arose with this belated application.

9

9. On this latter occasion on 8 th January, 2013, the defendant sought and obtained an adjournment in order to allow the present application to be made to this Court. The defendant then issued the present motion seeking an order pursuant to the inherent jurisdiction of the Court striking out the taxation of the plaintiff's bill of costs. At the original hearing of this application I expressed concern that this application would amount in substance to an application for an order of prohibition directed towards the Taxing Master. Given that in such circumstances it was appropriate that the Taxing Master should have notice of any such application, I directed that he be put on notice of application. The Taxing Master has since confirmed by letter dated 10 th July, 2013, that once his position has been properly outlined to the Court - namely, that before embarking on the taxation of costs, he wished to be fully addressed on the relevant law governing the application - he would abide by the decision of this Court.

Is the application statute-barred?
10

10. The first issue to be considered is whether the application is statute-barred. Section 1 l(6)(a) of the Statute of Limitations 1957 ("the 1957 Act") provides that:

"An action shall not be brought upon a judgment after the expiration of twelve years from the date on which the judgment became enforceable."

11

11. The term "action" is defined by s. 2 of the 1957 Act as including any proceeding (other than a criminal proceeding) in a court established by law, but the term "proceeding" is not defined.

12

12. There seems little doubt but that the term "judgment" in s. 11(6)(a) includes an order for costs. It is, after all, part of the court order and judgment. But when did the court's order for costs become enforceable in this sense? It is clear that a judgment for costs is not enforceable until the sum due is properly ascertained. If, for example, the judge measures costs and directs one of the parties to pay a specified sum from a specified date, then that order is enforceable from that date.

13

13. The measurement of costs is, of course, the exception rather than the rule. In the vast majority of cases the court will make...

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1 cases
  • Power v Kavanagh
    • Ireland
    • High Court
    • June 27, 2019
    ...[1996] 2 IR 459. In particular, the defendant places significant reliance upon a judgment of this court (Hogan J.) in Harte v. Horan [2013] 2 IR 291. The facts of that case were quite similar to those arising in the present. The plaintiff was involved in a road traffic accident and brought ......

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