Landers v Dixon
| Jurisdiction | Ireland |
| Judge | Mr. Justice Gerard Hogan |
| Judgment Date | 15 July 2015 |
| Neutral Citation | [2015] IECA 155 |
| Docket Number | [C.A. No. 79 of 2014],Appeal No. 2014 No.79 CA |
| Court | Court of Appeal (Ireland) |
| Date | 15 July 2015 |
[2015] IECA 155
Peart J.
Irvine J.
Hogan J.
Appeal No. 2014 No.79 CA
THE COURT OF APPEAL
Costs – Ord. 99, r. 5(2)(a) of the Rule of the Superior Courts 1986 – Taxation of Costs – Measured Costs
Facts: This appeal considered an important point in relation to costs. The court had to determine in what circumstances it was appropriate for the High Court to measure costs in accordance with Ord. 99, r. 5(2)(a) of the Rule of the Superior Courts 1986. The plaintiff appealed against the High Court decision measuring his costs in the sum of €20,000. The plaintiff maintained that the judge erred in law and failed to make an order for the taxation of his costs.
Held by Hogan J: The case was not simple and straightforward and the trial judge did not have the material available to enable him to make the appropriate assessment of the appropriate gross sum. The court drew attention to Ord. 99 r. 5(2)(3) which enables the court to require parties to produce estimates for costs incurred by them. The court determined that the trial judge erred in seeking to measure costs in the manner and circumstances that he did. The trial judge should have afforded the parties, particularly the party most likely to be adversely affected by the departure from a normal costs order, to make submissions and place any relevant material before the court. The appeal was allowed and an order for the payment of the plaintiff"s taxed costs was made in lieu of the High Court order for measured costs in the sum of €20,000.
This appeal raises a net but important point in relation to costs. In what circumstances is it appropriate for the High Court to measure costs in accordance with Ord. 99, r.5(2)(a) of the Rule of the Superior Courts 1986? This issue arises directly for our consideration following the decision of the High Court (Barrett J.) made on 3rd November 2014 which measured the plaintiff's costs in the sum of €20,000. The plaintiff (Mr. Landers) now appeals against that decision in circumstances where he maintains that the judge erred in law in doing so and in failing to make an order for the taxation of his costs.
These proceedings had their origin in a specific performance action commenced by the plaintiff arising from the sale of licenses premises. Those proceeding culminated in the defendant consenting to judgment on 16th June 2008 for the sum of €49,541. It is agreed that the costs of that application when taxed on 5th December 2009 came to €41,109, so that the total sum due and owing by Mr. Dixon to Mr. Landers was €90,650.
A judgment mortgage was registered against Mr. Dixon's interest in his family home which were the lands contained and described in Folio 2916F, on 2nd February 2011. Mr. Dixon had earlier paid some €38,000 in total in 2010 and 2012. The present proceedings were commenced by special summons on 17th May 2011, the plaintiff seeking, inter alia, a well charging order and an order for sale of the Kildare premises.
Mr. Landers certainly encountered difficulties with service of the proceedings. Ultimately, however, the High Court (Dunne J.) made a well charging order on 30th January 2012, which order was subsequently amended on 12th March 2012. The matter then appeared in the Examiner's List on five separate occasions between August 2012 and March 2013. On these occasions Mr. Dixon indicated that he sought time to address the outstanding debt because he wished to sell certain property.
The plaintiff then issued a motion for possession on 16th September 2013. This motion was itself adjourned on three occasions in total. The matter was ultimately heard by the High Court on 7th April 2014 (Finlay Geoghegan J.) and was adjourned to 12th May 2014 for mention. By this stage Mr. Dixon had managed to sell two sites and on 4th April 2014 he paid the sum of €75,655. There was a balance of €5,006 to be paid and this sum was ultimately paid on 3rd November 2014. It is only fair to record that Mr. Dixon had fallen ill during the period between 2010 and 2011 and this appears to have been a factor in the delayed payment. He had also paid some €28,000 in total in interest payments.
When the matter came before the High Court on 3rd November 2014 the only issue which remained to be decided was that of the costs of the 2011 well charging proceedings and motion for possession. At this stage that motion was struck out and the judgment mortgages were about to be discharged. Counsel for Mr. Dixon urged that in the circumstances no order for costs be made and that in default of that submission finding favour with the Court that Barrett J. fix a sum of €8,000 by way of measured costs. Counsel for Mr. Landers mentioned that a bill of costs had just been prepared by the costs accountant retained by his solicitor which claimed a sum of €47,000 (including VAT, counsels' fees and outlay). He accordingly urged the judge to make the standard order awarding the plaintiff the costs of the proceedings, to be taxed in the usual fashion. It was in those circumstances that Barrett J. decided to measure costs in the sum of €20,000 (including VAT).
As already noted, Mr. Landers has appealed that decision to this Court. While not disputing the court's jurisdiction to measure costs, he submitted that Barrett J. had no appropriate basis by which he could have measured the costs at €20,000 and that he should not have taken it upon himself to adjudicate on what would amount to an appropriate sum in respect of costs. Counsel for Mr. Dixon contended that the trial judge was entitled to measure costs in this manner and that he was entitled to do so in order to avoid the additional transaction costs associated with the taxation process.
The actual jurisdiction to measure costs is not at all in doubt. Section 14 (2) of the Courts (Supplemental Provisions) Act 1961, provides that the jurisdiction of the High Court should be 'exercised so far as regards pleading, practice and procedure generally, including liability to costs, in the manner provided by the Rules of Court'. The costs rules themselves are set out in Ord. 99.
Order 99 now provides in relevant part:-
'1. Subject to the provisions of the Acts and any other statutes relating to costs and except as otherwise provided by the Rules:
(1) The costs of and incidental to every proceeding in the...
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