Kenny v Legal Costs Adjudicator (Barry Magee) and Another

• Jurisdiction: Ireland
• Judge: Ms. Justice Power
• Judgment Date: 14 February 2024
• Neutral Citation: [2024] IECA 34
• Docket Number: Court of Appeal Record Number: 2023/253
• Court: Court of Appeal (Ireland)

Between:

Sean Kenny

Appellant

and

Legal Costs Adjudicator (Barry Magee)

Respondent

and

Greg Winters

Notice Party/Respondent

[2024] IECA 34

Costello J.

Power J.

Meenan J.

Court of Appeal Record Number: 2023/253

High Court Record Number: 2022/202 JR

THE COURT OF APPEAL

CIVIL

Unapproved

JUDGMENT of Ms. Justice Power delivered on the 14 ^th day of February 2024

Introduction

1 . This is an appeal against the judgment of the High Court ( [2023] IEHC 391, Heslin J.) delivered on 7 July 2023 in which the costs of judicial review proceedings were awarded against the appellant (‘Mr. Kenny’). At the outset of the appeal, the parties agreed that the order of the High Court, perfected on 11 August 2023 contained a flaw, on its face, in that it failed to record the High Court's order in respect of the substantive reliefs in the proceedings. These reliefs had been agreed between the parties in terms that had been submitted to the High Court. There was no dispute about the fact that the High Court had, in fact, granted those reliefs and this is clear from the judgment. An application under the ‘slip rule’ was required to correct the error and the parties agreed to furnish to the Court a draft of what the perfected order, as agreed, should have stipulated.

2 . That matter aside, the background to the proceedings is set out comprehensively in the judgment of the High Court. The litigation arose from a dispute on legal costs between Mr. Kenny and the Notice Party (‘Mr. Winters’), a solicitor who had represented Mr. Kenny in family law proceedings. That dispute became the subject of a legal costs' adjudication (‘the adjudication’).

The Facts

3 . A hearing took place before the Legal Costs Adjudicator (‘the Adjudicator’) on 2 November 2021 at 2 p.m.

4 . The Adjudicator reserved his decision until 2 p.m. on 19 November 2021. Mr. Kenny did not attend until 3.30 p.m. that day by which time matters had concluded. He asked the Adjudicator for some indication of the decision that he had made. The Adjudicator confirmed that he had found that Mr Winters' Bill of Costs to be reasonable, with a slight reduction being made to one item of the fees claimed. He also stated that Mr. McCann, who was Mr. Winters' legal costs' accountant, had undertaken to provide to Mr. Kenny a more detailed account of the Determination. Mr. Kenny indicated that he was going to appeal the matter and the Adjudicator confirmed that an application for a consideration could be made under s.160 of the Legal Services Regulation Act 2015 (‘the 2015 Act’). Section 160, in relevant part, provides that:

“ (1) Where a party to an adjudication is dissatisfied with a decision of a Legal Costs Adjudicator under section 157 to confirm a charge, not to confirm a charge or to determine a different amount to be charged in respect of a matter or item the subject of the adjudication, he or she may, within 14 days of the date on which the determination is furnished to him or her under section 157(2), apply to the Legal Costs Adjudicator for the consideration of the decision and the making of a determination under this section.”

5 . On 22 November 2021 Mr. Kenny requested from Mr McCann a copy of the Adjudicator's Determination. On the next day and as a matter of courtesy, he was provided with a copy of the determined Bill of Costs arising from the decision delivered at the hearing on 19 November 2021. The copy furnished set out, in red, all deductions that had been made and Mr. McCann warned Mr. Kenny that these were his own preliminary calculations and had yet to be reconciled with the Office of the Legal Costs Adjudicators.

6 . Some further email correspondence passed between Mr. Kenny and Mr. McCann thereafter and on 29 November 2021, Mr. McCann indicated that he would send Mr. Kenny the ‘ Certificate of Adjudication’ as soon as same was received and that, in the meantime, if Mr. Kenny had any queries, he should contact the Office of the Legal Costs Adjudicators.

7 . On 3 December 2021 Mr. Kenny instructed a firm of solicitors to write to the Office of the Legal Costs Adjudicators to lodge objections to the Determination. He requested an extension of time for so doing should that be deemed necessary, and he also requested a copy of the Adjudicator's Report.

8 . As matters transpired, the Adjudicator required that a formal application for an extension of time be made. To this end, a hearing was held on 16 December 2021 (‘the hearing’). Mr. Kenny was represented by counsel and Mr. Winters was represented by his legal costs' accountant, Mr. McCann. There was no evidence before the Court that Mr. Kenny attended the hearing.

9 . At the hearing, the Adjudicator heard submissions on (i) when, if at all, the 14-day period for seeking a consideration of his Determination had commenced and (ii) whether he, as Adjudicator, had, if necessary, a discretion to extend the statutory period.

10 . The Adjudicator reserved his decision and on 18 January 2022, delivered a five-page Ruling (‘the Ruling’) on the issues that had been raised at the hearing.

11 . At paras. 6 and 7 of the Ruling, the Adjudicator noted the two submissions made on behalf of Mr. Kenny. The first was that a written Report of the Determination was required to prepare, properly, the grounds for consideration under s.160 of the 2015 Act and that it followed, therefore, that the 14-day time limit could only run from the date of the furnishing of the Report (which Mr Kenny had not received) as opposed to the oral furnishing of the Determination. Secondly, on behalf of Mr. Kenny it was submitted that, if necessary, the Adjudicator enjoyed a jurisdiction pursuant to O.99, r.36(10) of the Rules of the Superior Courts (‘the RSC’) to extend the relevant time limit.

12 . There is no reference in the Ruling to any submission having been made by Mr. McCann, on behalf of Mr Winters, on the first issue.

13 . As to the second issue, the Adjudicator, at para. 8 of the Ruling, recorded the submission that had been made on behalf of Mr. Winters. He stated:

“ In reply Mr McCann indicated that the provisions of section 160 were clear. There is no provision within the statute for an extension of time. Order 99 rule 36(10) was clearly caveated by the phrase ‘subject to any provisions of Statute’. Therefore, it was submitted, the rule could not permit an extension of the 14 day time limit provided for in section 160.”

14 . The Adjudicator held that any jurisdiction to extend the 14-day time limit must be found in primary legislation. He found that he did not have discretion to extend time because the statute did not provide for it and it was unlikely, in his view, that any Rule of Court could amend primary legislation. The Adjudicator was satisfied that whilst the case law opened to him dealt with decisions in respect of the Residential Tenancies Board, the findings made therein could apply more broadly. Accordingly, he concluded that the 14-day time limit ran from the date on which Mr. Kenny received the Determination (19 November 2021) and that it had expired on 3 December 2021. As he had no jurisdiction to extend the time limit and as no request for consideration had been received within the 14 days, Mr. Kenny was out of time in seeking such consideration.

15 . Thereafter, a Certificate of Determination dated 31 January 2022 was issued.

16 . On 1 February 2022, the Adjudicator's written Report, which had been requested by Mr. Kenny pursuant to s. 157(8) of the 2015 Act was furnished to his solicitor pursuant to s. 157(10) thereof.

17 . Because Mr Kenny took the view that the 14-day period only began to run from the date he received the written Report (1 February 2022), he, through his solicitors, sent a letter on 14 February 2022 requesting a consideration of the Adjudicator's Determination. The letter was copied to Mr. Winters.

18 . On 24 February 2022, the Adjudicator delivered a decision finding that Mr. Kenny's application for consideration was out of time for the reasons given in the Ruling.

The Proceedings

19 . Leave to apply for relief by way of judicial review was granted on 21 March 2022. Six reliefs were sought in the Notice of Motion, including:

Mr. Kenny also sought such further or other orders and reliefs as the Honourable Court deemed fit together with an order for the costs of the application.

• (1) A Declaration that the decision of the Adjudicator communicated to the applicant on 24 February 2022 purporting to refuse his application for a consideration of the Determination in the adjudication of costs was null, void and of no effect.

• (2) An Order of Certiorari quashing the decision of 24 February 2022.

• (3) An Order of Certiorari quashing the ‘ Certificate of Adjudication’ issued by the Adjudicator.

• (4) A Declaration that the Determination in the adjudication of costs was furnished to Mr. Kenny on 1 February 2022 and that his request for a consideration of the Determination under s.160 of the 2015 Act was made to the Adjudicator within the requisite 14 days.

• (5) An Order remitting to the Adjudicator for consideration and review, the Bill of Costs in the adjudication of costs as between Mr. Winters and Mr. Kenny.

• (6) If necessary, an injunction restraining the Notice Party from enforcing the final ‘ Certificate of Determination’ in the adjudication of costs.

20 . I pause to observe that, in his pleadings, Mr. Kenny did not seek any relief against Mr. Winters. There is nothing in the pleadings that allege that Mr. Winters, as Notice Party, had not discharged a responsibility that he was obliged to discharge or that he had breached a legal or any other duty that was imposed upon him. Specifically, Mr. Kenny did not seek any relief against Mr. Winters in respect of costs.

21 . The core challenge of the judicial review was that contrary to what the Adjudicator had found, Mr. Kenny had not, in fact, been furnished...