Kenny v The Legal Costs Adjudicator

• Jurisdiction: Ireland
• Judge: Mr. Justice Mark Heslin
• Judgment Date: 07 July 2023
• Neutral Citation: [2023] IEHC 391
• Court: High Court
• Docket Number: [2022 202 JR]

Between

Sean Kenny

Applicant

and

Legal Costs Adjudicator (Barry Magee)

Respondent

and

Greg Winters

Notice Party

[2023] IEHC 391

[2022 202 JR]

THE HIGH COURT

JUDICIAL REVIEW

Costs – Judicial review – Adjudication of costs – Applicant seeking costs from the notice party – Whether the notice party had any responsibility for the decision which gave rise to the application for judicial review

Facts: The High Court (Meenan J), by order made on 21 March 2022, granted the applicant, Mr Kenny, leave to apply by way of application for judicial review for the reliefs set out at para. (d) in the applicant’s statement, filed on 10 March 2022, on the grounds set out at para. (e) therein. The relevant relief sought was as follows: (1) a declaration that the decision of the respondent, the Legal Costs Adjudicator, which was communicated to the applicant by letter dated 24th February 2022 purporting to refuse the applicant’s application for a consideration by the respondent of the determination in the adjudication of costs as between legal practitioner and client and entitled ‘Greg Winters v. Sean Kenny bearing record number OCLA 2021: 000705’ is null void and of no effect; (2) an order of certiorari by way of judicial review quashing that decision of the respondent; (3) an order of certiorari by way of judicial review quashing a certificate of adjudication issued by the respondent in the adjudication of costs as between legal practitioner and client; (4) a declaration that the determination in the adjudication of costs as between legal practitioner and client was furnished to the applicant on 1st February 2022 and the applicant’s request for a consideration of the determination under s. 160 of the Legal Services Regulation Act 2015 was accordingly made to the respondent within the requisite 14 days; (5) an order remitting to the respondent for reconsideration and review the bill of costs in the adjudication of costs as between legal practitioner and client. At the hearing, the High Court was informed that the wording of draft orders had been agreed and this was handed into court. The remaining issue in dispute between the parties concerned responsibility for the costs of the proceedings. The applicant acknowledged that he had no entitlement to seek costs against the respondent, but asserted that entitlement to costs from the notice party, Mr Winters. The applicant submitted that the notice party and his cost accountant played “a pivotal role in bringing about” the making, by the respondent, of the impugned decision. The notice party rejected this and contended that, in circumstances where the applicant rejected an offer made by the notice party, there should be no order as to costs and the court should award the costs of the application against the applicant in favour of the notice party.

Held by Heslin J that, guided by the principles in O’Donovan v County Registrar for Cork & Anor [2021] IEHC 307, he could not take the view that the notice party either brought about or was in any way responsible for the respondent’s 24 February 2022 decision; nor did the notice party ever attempt to support it. Heslin J held that this was a situation where the notice party had no responsibility for the decision which gave rise to the application for judicial review and where the notice party did not participate in the proceedings.

Heslin J held that the applicant was not entitled to an order for costs against the notice party. Heslin J was satisfied that, as the “entirely successful” party in respect of the application (s. 169 of the Legal Services Regulation Act 2015), the notice party was entitled to the costs of the costs application, to include the costs of senior and junior counsel.

Costs awarded to notice party.

JUDGMENT of Mr. Justice Mark Heslin delivered on the 7th day of July 2023

Introduction

1 . By way of background, the Applicant is a retired solicitor who, in February 2018, instructed the Notice Party, who is a solicitor, to act on his behalf in respect of certain proceedings which were ultimately disposed of in July 2020.

2 . The Notice Party produced a bill of costs which was referred for adjudication before the Respondent.

3 . By order made on 21 March 2022 (Meenan J.) the Applicant was granted leave to apply by way of application for judicial review for the reliefs set out at para. [D] in the Applicant's Statement, filed on 10 March 2022, on the grounds set out at para. [E] therein. The relevant relief sought was as follows:-

“ 1. A declaration that the decision of the Respondent which was communicated to the Applicant by letter dated 24 ^th February 2022 purporting to refuse the applicant's application for a consideration by the Respondent of the determination in the adjudication of costs as between legal practitioner and client and entitled ‘ Greg Winters v. Sean Kenny bearing record number OCLA 2021: 000705’ is null void and of no effect.

2. An order of Certiorari by way of judicial review quashing a decision of the Respondent which was communicated to the Applicant by letter dated 24 ^th February 2022 purporting to refuse the applicant's application for a consideration by the Respondent of the determination in the adjudication of costs as between legal practitioner and client and entitled ‘ Greg Winters v. Sean Kenny bearing record number OCLA 2021: 000705’.

3. An order of Certiorari by way of judicial review quashing a certificate of adjudication issued by the respondent in the adjudication of costs as between legal practitioner and client and entitled ‘ Greg Winters v. Sean Kenny bearing record number OCLA 2021: 000705’.

4. A Declaration that the determination in the adjudication of costs as between legal practitioner and client and entitled ‘ Greg Winters v. Sean Kenny bearing record number OCLA 2021: 000705’ was furnished to the applicant on 1 ^st February 2022 and the applicant's request for a consideration of the determination under Section 160 of the Legal Services Regulation Act 2015 was accordingly made to the respondent within the requisite 14 days.

5. An order remitting to the respondent for reconsideration and review the bill of costs in the adjudication of costs as between legal practitioner and client and entitled ‘ Greg Winters v. Sean Kenny bearing record number OCLA 2021: 000705’…”.

4 . At the hearing, this court was informed that the wording of draft orders had been agreed and this was handed into court.

5 . The remaining issue in dispute between the parties, concerned responsibility for the costs of these proceedings. In essence, the Applicant acknowledges that he has no entitlement to seek costs against the Respondent, but asserts that entitlement to costs from the Notice Party. The Applicant submits that the Notice Party and his cost accountant played “a pivotal role in bringing about” the making, by the Respondent, of the impugned decision. The Notice Party rejects this and contends that, in circumstances where the Applicant rejected an offer made by the Notice Party that there should be no order as to costs, the court should award the costs of the present application against the Applicant in favour of the Notice Party.

LSRA 2015

6 . Certain provisions of the Legal Services Regulation Act, 2015 (“the 2015 Act”) are discussed in this judgment and, for the sake of clarity, it is appropriate to set out, at this juncture, what is provided for in sections 57 and 160 of the 2015 Act:

“ Preliminary review of complaints

57. (1) Where the Authority receives a complaint under this Part, it shall conduct a preliminary review of the complaint to determine whether or not the complaint is admissible.

(2) The Authority, for the purpose of its preliminary review under subsection (1), shall notify the legal practitioner concerned of the complaint, which notification shall request the legal practitioner to respond to the Authority, within such reasonable period as is specified in the notification, with his or her observations on the complaint.

(3) A notification under subsection (2) shall be accompanied by a copy of the complaint and any documents relating to the complaint that are submitted by the complainant.

(4) The Authority, for the purpose of determining whether a complaint is admissible under section 58, may request from the complainant or the legal practitioner further information relating to the complaint.

(5) The Authority, having considered the response (if any) of the legal practitioner to the notification under subsection (2) and any information received under subsection (4), shall, in accordance with section 58, determine that the complaint is—

(a) admissible,

(b) inadmissible, or

(c) one to which section 58 (6) applies.

(6) The Authority shall notify the complainant and the legal practitioner concerned of its determination under this section and of the reasons for its determination.

(7) Where the Authority makes a determination referred to in subsection (5)(b), it shall take no further action under this Part in relation to the complaint.

…

160. (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.

(2) An application under subsection (1) shall be—

(a) in such form as may be specified in rules of court or, where applicable, under section 166, and shall specify by a list in a short and concise form the matters or items, or parts thereof, to which the decision of the Legal Costs Adjudicator being objected to relates and the grounds and...