Leslie Buckley v Richard Fleck

• Jurisdiction: Ireland
• Judge: Mr. Justice Garrett Simons
• Judgment Date: 12 April 2021
• Neutral Citation: [2021] IEHC 232
• Docket Number: 2018 No. 124 COS
• Court: High Court

In the Matter of Independent News and Media Plc

And in the Matter of Section 748 of the Companies Act 2014

And in the Matter of an Application

Between

Leslie Buckley

Moving Party

and

Richard Fleck

Sean Gillane

Respondents to the Application

[2021] IEHC 232

2018 No. 124 COS

THE HIGH COURT

Revocation – Appointment of inspectors – Costs – Notice party seeking costs – Whether notice party was entitled to costs of substantive hearing

Facts: The respondents, Mr Fleck and Mr Gillaine (the inspectors), were appointed by the High Court (Kelly P) to investigate and report upon the affairs of Independent News and Media plc (the Company) pursuant to s. 748 of the Companies Act 2014. The moving party, Mr Buckley, subsequently brought an application to have the appointment of the inspectors revoked. The revocation application was refused for the reasons set out in a reserved judgment delivered on 15 February 2021: [2021] IEHC 101 (the principal judgment). One of the notice parties to the revocation application, Mr Pitt, filed submissions on 1 March 2021 asserting an entitlement to recover his costs as against Mr Buckley. It was contended that Mr Pitt was a necessary party to the proceedings, and that he did not—and indeed could not—take a neutral role on the issues raised by Mr Buckley. It was further contended that his participation in the proceedings was both necessary and reasonable to protect his interests, and that he was accordingly entitled to his costs. Mr Pitt also complained about the initial directions hearing in the proceedings on 27 April 2020. It was said that Mr Buckley brought the application before the High Court without putting Mr Pitt on notice of the fact that the former would—or so it was said—be disclosing confidential information from the inspection process publicly, and would be impugning Mr Pitt’s character publicly without an opportunity to reply. The position adopted by Mr Buckley in replying submissions delivered on 11 March 2021 was to say that much of Mr Pitt’s participation in the proceedings had been directed to misplaced complaints, divorced from the substance of the revocation application, on issues around notice and confidentiality. In respect of the substance of the case, it was said that Mr Pitt added nothing to the case made by the inspectors.

Held by Simons J that Mr Pitt was entitled to the costs incurred up and until the substantive hearing of the revocation application; those costs included costs incurred in respect of (i) representation at the various directions hearings, (ii) the preparation and filing of affidavits, (iii) the reviewing of the written legal submissions filed on behalf of Mr Buckley and the inspectors, and (iv) the preparation of the written legal submissions on behalf of Mr Pitt. Simons J held that in default of agreement, the costs were to be measured under Part 10 of the Legal Services Regulation Act 2015 by the Office of the Chief Legal Costs Adjudicator. Simons J held that the costs order did not extend to costs incurred in respect of the eight-day substantive hearing on the revocation application; thus, no brief fee, refreshers nor general instructions fee were recoverable. Simons J held that this was because the application to revoke the appointment of the inspectors did not engage any right or entitlement peculiar to Mr Pitt; Mr Pitt had not identified any interest which would justify his recovering the costs of representation at the eight-day hearing. Simons J held that such costs were not reasonably incurred. Simons J held that in the absence of any brief fee, the fee allowed in respect of the review and preparation of submissions should fully reflect the work involved.

Simons J held that a separate order for costs was being made in favour of the inspectors as proposed in the principal judgment. Simons J held that the inspectors, having been entirely successful in resisting the revocation application, were entitled to their costs, including the costs of the eight-day hearing, the costs of their written legal submissions, the costs of an overnight transcript, and all reserved costs. Simons J held that such costs were to be adjudicated under Part 10 of the 2015 Act in default of agreement.

Notice party not entitled to costs of substantive hearing.

Appearances

Seán Guerin, SC, Lorcan Staines, SC and Brian Gageby for Mr. Buckley instructed by A & L Goodbody

John Rogers, SC, Tom Mallon and Orla Murphy for Mr. Pitt instructed by Daniel Spring & Co.

JUDGMENT of Mr. Justice Garrett Simons delivered on 12 April 2021

INTRODUCTION

1 This judgment determines the incidence of costs for an (unsuccessful) application for theremoval of two court-appointed inspectors. The inspectors had been appointed by theHigh Court (Kelly P.) to investigate and report upon the affairs of Independent News andMedia plc (“ the Company”). The inspectors had been appointed pursuant to section 748 of the Companies Act 2014.

2 Mr. Leslie Buckley subsequently brought an application to have the appointment of the inspectors revoked (“ the revocation application”). The revocation application was refused for the reasons set out in a reserved judgment delivered on 15 February 2021, Independent News and Media (Recusal application) [2021] IEHC 101 (“ the principal judgment”).

3 In circumstances where the principal judgment had been delivered electronically, the attention of the parties had been drawn to the statement published by the Chief Justice and Presidents on 24 March 2020 to the effect that questions concerning costs will generally be dealt with by written submissions post-judgment. The principal judgment noted that were the default position in respect of costs under the Legal Services Regulation Act 2015 to obtain, then the inspectors, having successfully resisted the application to revoke their appointment, would be entitled to their costs as against Mr. Buckley (such costs to be assessed by the Chief Legal Costs Adjudicator in default of agreement). I directed that if any of the parties wished to contend for a different form of order, then written submissions should be filed.

SUBMISSIONS ON COSTS

4 One of the notice parties to the revocation application, Mr. Robert Pitt, filed submissions on 1 March 2021 asserting an entitlement to recover his costs as against Mr. Buckley. It is contended that Mr. Pitt was a necessary party to the proceedings, and that he did not—and indeed could not—take a neutral role on the issues raised by Mr. Buckley. It is further contended that his participation in the proceedings was both necessary and reasonable to protect his interests, and that he is accordingly entitled to his costs.

5 Mr. Pitt also makes complaint about the initial directions hearing in these proceedings on 27 April 2020. It is said that Mr. Buckley brought the application before the High Court without putting Mr. Pitt on notice of the fact that the former would—or so it is said—be disclosing confidential information from the inspection process publicly, and would be impugning Mr. Pitt's character publicly without an opportunity to reply.

6 The position adopted by Mr. Buckley in replying submissions delivered on 11 March 2021 is to say that much of Mr. Pitt's participation in the proceedings had been directed to misplaced complaints, divorced from the substance of the revocation application, on issues around notice and confidentiality. In respect of the substance of the case, it is said that Mr. Pitt added nothing to the case made by the inspectors.

7 Mr. Pitt delivered a second set of submissions, by way of rejoinder, on 26 March 2021, in which he elaborates upon his complaints as to the publication, following the initial directions hearing, of the detail of the inspectorship process which had, until that point, been conducted in private.

8 Neither party has sought an oral hearing on the question of costs. The allocation of costs has, therefore, been decided on the basis of the papers, in accordance with the statement published by the Chief Justice and Presidents. The submissions are published with this judgment.

PRINCIPLES GOVERNING COSTS

9 The principles governing the incidence of costs in legal proceedings are now prescribed by the Legal Services Regulation Act 2015 (“ LSRA 2015”) and Order 99 of the Rules of the Superior Courts (as revised in December 2019). The default position is that a party who has been entirely successful in proceedings is entitled to their costs as against the unsuccessful party.

10 To date, most of the case law on the revised costs regime has been directed to the test to be applied in determining “success” in proceedings, especially in circumstances where the party who might be said to have “won” overall may nevertheless have been unsuccessful on a number of specific issues. (See, for example, Chubb European Group v. Health Insurance Authority [2020] IECA 183). The question which arises in the present proceedings is different: it requires consideration of the entitlement, if any, of a notice party to costs.

11 Both sides helpfully referred me to the judgment in Usk and District Residents Association Ltd v. Environmental Protection Agency [2007] IEHC 30 (“ Usk”). The proceedings in Usk were judicial review proceedings which sought to challenge the validity of a waste licence that had been granted for the development and operation of a waste landfill facility. The respondent to the proceedings had been the competent authority which had made the decision to grant the licence, i.e. the Environmental Protection Agency. The licensee, i.e. the operator of the proposed facility, had been joined to the proceedings as a notice party.

12 The judicial review proceedings were ultimately dismissed. The High Court made a costs order in favour of both the respondent and the notice party as against the unsuccessful applicant. The court held that the proceedings were “intimately concerned...