Kennedy v Killeen Corrugated Products Ltd

• Jurisdiction: Ireland
• Judge: Finnegan P.
• Judgment Date: 28 November 2006
• Neutral Citation: [2006] IEHC 385
• Date: 28 November 2006
• Court: High Court
• Docket Number: [2005

KENNEDY v KILLEEN CORRUGATED PRODUCTS LTD

BETWEEN

TERENCE KENNEDY

PLAINTIFF

AND

KILLEEN CORRUGATED PRODUCTS LIMITED

DEFENDANT

AND

DOOR FIX LIMITED

THIRD PARTY

AND

THE LAW SOCIETY OF IRELAND

NOTICE PARTY

[2006] IEHC 385

No. 1050P/2005

THE HIGH COURT

PRACTICE AND PROCEDURE:

Costs

Solicitors - Discretion of court - Wasted costs order - Whether costs incurred unnecessarily - Whether conduct of solicitor âÇÿimproper or unreasonable' - Solicitor ordered to pay costs personally - Whether order properly made - Myers v Elman [1940] AC 283 and Edwards v Edwards [1958] 2 WLR 956 considered - Whether Master of High Court having jurisdiction to make wasted costs order against solicitor - Rules of the Superior Courts 1986 (SI 15/1986), O 63, r 6 and O99, r 7 - Appeal allowed (2005/1050P -Finnegan P - 28/11/2006) [2006] IEHC 385, [2007] 1 ILRM 375 Kennedy v Killeen Corrugated Products Ltd

The plaintiff appealed against the decision of the Master of the High Court ordering pursuant to Order 99, rule 7 RSC that the costs of the plaintiff's motion for interrogatories and the order of the plaintiff's solicitor be disallowed and that the plaintiff's solicitor do repay to his client any costs which the client has been ordered to pay to the defendant. The Master further ordered that in the event of the solicitor for the plaintiff making an application to the High Court pursuant to Order 63, rule 9 RSC in respect of the aforementioned Order a specific named individual would be appointed as solicitor to represent the plaintiff at the hearing of the said application. In his decision, the Master determined that the costs of the motion were incurred without any reasonable cause.

Held by Finnegan P. in allowing the appeal: That the jurisdiction to make the Order under Order 99, rule 7 did not arise in this case, as the solicitor for the plaintiff was not guilty of negligence which could be characterised as gross, nor was he guilty of misconduct. In any event, the Master did not have the power to make the Order the subject matter of this appeal. Order 99, rule 7 does not apply to proceedings before the Master and the phrase "the Court" in the context of O.99, r.7 does not include the Master, as his powers as to costs are dealt with separately in Order 63 RSC. Jurisdiction to make the said Order was not conferred on the Master by statute, Rules of Court or by allocation by the President of the High Court. Furthermore, the Master did not have the power to make an Order under O.99, r.7 referring the matter to the Taxing Master for inquiry and report and nominating a solicitor to attend and take part in such inquiry.

Reporter: L.O'S.

RSC O 99 r7

RSC O 63 r9

SOLICITORS ACT 1954 S14(3)

MYERS v ELMAN 1940 AC 282 1939 4 AER 484

EDWARDS v EDWARDS 1958 1 P 235

COURT OFFICERS ACT 1926 S5(2)

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S14(3)

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S4(2)

COURT OFFICERS ACT 1926 S31(3)

COURTS & COURT OFFICERS ACT 1995 S24

CONSTITUTION ART 37.1

COURTS & COURT OFFICERS ACT 1995 S25

TAYLOR v CLONMEL HEALTHCARE LTD 2004 1 IR 169 2004 2 ILRM 133

RSC O 63 r6

RSC O 99 r1(1)

RSC O 99 r5(2)(a)

RSC O 63 r2

RSC O 63 r3

CONSTITUTION ART 37

1 Judgment of Finnegan P. delivered the 28th day of November 2006 .

2 The Plaintiff was injured in the course of his employment by a shutter type door and issued proceedings in the Circuit Court. The Defendant, the employer, joined the Third Party. Liability is very much in issue. The matter was transferred to the High Court as the Plaintiff's injuries, it transpired, were much more serious than originally thought.

3 The Plaintiff's Senior Counsel furnished a detailed Advice on Proofs on the 1st February 2005. Included was the following advice -

"Agents should write an open letter to the Defendants requesting them to admit the following facts:-"

(a) Was not the shutter door defective prior to the Plaintiff's accident.

(b) Did not Mr. Geoghegan report that defect to the Defendants prior to the accident.

(c) Did not Mr. Kerrigan inspect the damage.

(d) On inspection of the door did not the Defendants find faulty sensors which were replaced.

(e) Were not the sensors inappropriately placed prior to the accident.

(f) Were sensors replaced as a result of the accident.

4 In the event that this is not replied to agents should arrange to have interrogatories delivered in a similar line and insist on sworn replies."

5 The Plaintiff applied to the Master for an Order for the delivery of interrogatories. The grounding Affidavit referred to a letter dated 22nd March 2005 requesting the Defendant to admit facts and to Senior Counsel having advised that interrogatories are necessary. In a written decision dated 4th November 2005 the Master set out the law as to interrogatories clearly and correctly. Interrogatories must serve a clear litigious purpose at the time of application for the same. The test to be applied is whether it is essential for the proper presentation of the Applicant's case that the information be furnished at that juncture. The Master went on to consider each of the interrogatories sought to be delivered and in short he found that they each failed the test. He concluded his ruling with the following paragraph -

"I won't be making the order sought by the Plaintiff in this application but before I make the order dismissing the application I am calling on the Plaintiff's solicitor under Order 99 Rule 7 to show cause why he should not repay to his client any costs which the client may be ordered to pay to the Defendant."

6 The Rules of the Superior Courts Order 99 Rule 7 provide as follows -

"If in any case it shall appear to the Court that costs have been improperly or without any reasonable cause incurred, or that by reason of any undue delay in proceeding under any judgment or order, or of any misconduct or default of the solicitor, any costs properly incurred have nevertheless proved fruitless to the person incurring the same, the Court may call on the solicitor of the person by whom such costs have been so incurred to show cause why such costs should not be disallowed as between the solicitor and his client and also (if the circumstances of the case shall require), why the solicitor should not repay to his client any costs which the client may have been ordered to pay any other person, and thereupon may make such order as the justice of the case may require. The Court may refer the matter to the Taxing Master for inquiry and report; and may also nominate a solicitor to attend and take part in such inquiry. Notice of the order shall be given to the client in such manner as the Court may direct. Any costs of the solicitor nominated as aforesaid shall be paid by such parties, or out of such funds as the Court may direct; or, if not otherwise paid may be paid out of such monies (if any) as may be provided by the Oireachtas."

7 On the 9th December 2006 Senior Counsel who had advised on proofs and the Plaintiff's solicitor attended before the Master. Senior Counsel made submissions. The Master reserved his decision until the 3rd February 2006 . In fact the Master handed down a decision on the 2nd February 2006 in the form of a written decision. The relevant part of the Master's Order reads as follows -

"It is ordered that the said motion do stand struck out.

And it is ordered that the Plaintiff do pay to the Defendant the costs of this motion when taxed and ascertained with a stay on execution of the within order for costs until the determination of these proceedings.

It is further ordered that pursuant to Order 99 Rule 7 (RSC) that the costs of this motion and order of the Plaintiff's solicitor be disallowed and that the Plaintiff's solicitor do repay to his client any costs which the client has been ordered to pay to the Defendant.

And in the event of the solicitor for the Plaintiff making an application to the High Court pursuant to Order 63 Rule 9(RSC) in respect of the said Order pursuant to Order 99 Rule 7(RSC) herein the Master doth appoint Mr. Manus McClafferty as solicitor to represent the Plaintiff at the hearing of the said application."

8 In the course of his written decision the Master said -

"I was of the view, last November, that the interrogatories application was pointless and misconceived. It did not need two days of legal argument to convince me of that: it was "glaringly obvious". I remain of that view. The solicitor has not attempted to persuade me otherwise. Clearly, there is no suggestion here that the solicitor has acted "improperly", but I do not propose to rule on whether the motion was "unreasonable" (in the sense of not permitting of a reasonable explanation) or "negligent" (a failure to act with the competence reasonably expected of ordinary members of the profession). I have a simpler test to apply, employing the language of Order 99 Rule 7: were costs incurred "without any reasonable cause"?

I am of the view that the costs of this motion were incurred without any reasonable cause and I will make an Order under Order 99 Rule 7 requiring the solicitor to reimburse his client for the costs the latter is liable to pay the Respondent and cancelling the solicitor's entitlement to be paid by his client for the costs of the application."

9 The Plaintiff appeals to this Court the terms of the Notice of Motion being as follows -

"An Order pursuant to Order 63 Rule 9 of the Rules of the Superior Courts appealing so much of the Order of the Master of the High Court made on the 3rd February 2006 relating to the Order made by him pursuant to Order 99 Rule 7 (RSC) that the costs of the motion and order of the Plaintiff's solicitor be disallowed, that the Plaintiff's solicitor do repay to his client any costs which the client has been ordered to pay to the...