Nolan v The County Council of the County of Waterford and Others
| Jurisdiction | Ireland |
| Judge | Mr Justice Barr |
| Judgment Date | 25 April 2024 |
| Neutral Citation | [2024] IEHC 253 |
| Court | High Court |
| Docket Number | [Record No. 2023/156 JR] |
and
[2024] IEHC 253
[Record No. 2023/156 JR]
THE HIGH COURT
JUDGMENT of Mr Justice Barr delivered on the 25 th day of April 2024.
. The applicant instituted personal injury proceedings in the Circuit Court against the notice parties (hereinafter referred to as ‘the defendants’), arising out of a fall on a public footpath on 3 April 2018.
. The applicant recovered judgment in the sum of €8,000 in the Circuit Court against the second and third defendants. He was awarded costs against them, on the District Court scale.
. The applicant presented a bill in respect of his legal costs in running the action in the Circuit Court, in the sum of €32,986.89. Of that, the applicant's solicitor's professional fee was charged at €19,414.44, exclusive of outlay and VAT. Counsel's fees were charged at €2,350, exclusive of VAT.
. Following a taxation before the County Registrar, the professional fee allowed to the applicant's solicitor was €2,250, plus outlay, plus VAT; together with €800, plus VAT, in respect of counsel. This left a shortfall on the fees charged in the bill of costs of €24,231.11.
. In this application, the applicant contends that the District Court Rules Committee and the County Registrar acted in breach of s.17(4) of the Courts Act 1981, as amended, which prohibits the imposition of scale fees by any rules of court.
. On 3 April 2018, the applicant was walking along the footpath at The Causeway, Dungarvan, County Waterford, when it was alleged that he was caused to trip and fall, due to a hole or defect in the surface of the footpath. As a result of this accident, the applicant suffered a soft tissue injury to his right ankle.
. On 25 June 2019, the applicant obtained an authorisation from PIAB to institute proceedings in respect of his injuries. Proceedings were commenced against the defendants by personal injury summons issued in the Circuit Court on 20 October 2019. The defendants filed full defences to the action; denying that they were responsible for the alleged defect in the surface of the footpath and alleging contributory negligence on the part of the applicant.
. On 15 December 2021, the action was heard in the Circuit Court. The applicant was successful in obtaining judgment for €8,000 against the second and third defendants. He was unsuccessful in his claim against Waterford City and County Council.
. The applicant's action was dismissed against the first named defendant with costs, but the applicant was given an order over in respect of those costs, against the second and third defendants. The applicant was successful in obtaining judgment and costs against the second and third defendants. However, the order provided that his costs were to be on the District Court scale. As already noted, the applicant presented a bill of costs in the total sum of €32,986.89.
. On 23 January 2023, the applicant's costs were taxed before the County Registrar for the County of Waterford. As previously noted, the first respondent allowed €2,250, plus outlay, plus VAT, in respect of the applicant's solicitor. He allowed €800, plus VAT, in respect of counsel's fees. The total shortfall in respect of the amount of fees recovered on taxation and the amount claimed in the bill of costs, came to €24,231.11.
. On 6 March 2023, the applicant first applied for leave to proceed by way of judicial review. Leave was ultimately granted to bring the within proceedings on 8 May 2023.
. The only evidence of what transpired at the taxation that was carried out by the first respondent on 23 January 2023, is the account set out in the affidavit sworn on 20 February 2023, by the applicant's solicitor, Mr David Burke. In that affidavit, he stated as follows at paras. 18 and 19:-
“18. The taxation of the bill of costs took place before Mr James Seymour, County Registrar, in Waterford Courthouse on 23 January 2023. I appeared at the taxation of the bill of costs. KC Cable Vision Limited and Virgin Media Limited were represented by Mr Tony McMahon, who is a cost accountant. I submitted to the County Registrar that the applicant was entitled to recover all party and party costs itemised and claimed in the bill of costs. Mr McMahon on behalf of KC Cable Vision Limited and Virgin Media Limited made a preliminary objection to the County Registrar to the effect that the order of her honour Judge Alice Doyle made on 15 December 2021 had ordered that the applicant shall recover the costs of the Circuit Court proceedings from the second and third notice parties on the District Court scale with a certificate for counsel and that the County Registrar was bound by this and that the County Registrar was required to tax the applicant's party and party costs on the basis of the District Court scale of costs.
19. I say that the County Registrar agreed with the preliminary objection made on behalf of the second and third notice parties. The County Registrar ruled that he was required to tax the applicant's party and party costs on the basis of the District Court scale of costs. The County Registrar ruled that the costs that the applicant could recover in respect of the professional fees for solicitor and counsel were limited to the costs for solicitor and counsel specified in the District Court scale of costs. The County Registrar said that his hands were tied and directed that the costs that the applicant shall recover in respect of the professional fees for solicitor and counsel were the costs specified in the District Court scale of costs.”
. The key provision in this case is s.17 of the Courts Act 1981, as inserted by s.14 of the Courts Act 1991. That section is headed “Limitation on amount of applicant's costs in certain proceedings”. In s.17(1) it is provided that where a person has obtained an order from a court that is not the lowest court having jurisdiction to make an order granting the relief the subject of the order, the applicant shall not be entitled to recover more costs than he would have been entitled to recover, if the proceedings had been commenced and determined in the lowest court having jurisdiction to deal with the matter.
. Section 17(4) is the key provision in this case. It provides as follows:
(4) It shall not be lawful for rules of court to contain or impose any restriction on the amount of costs recoverable by any party from any other party in any action or other proceeding, but nothing in this subsection shall prevent the insertion in rules of court of a restriction on the amount of the costs recoverable which is identical with a restriction imposed by this section nor the fixing by rules of court of the amount recoverable by any person as and for the costs and expenses incurred by him in the doing of any specified thing in any particular form of action or other proceeding.
. There are a number of other statutory provisions which are of some relevance to the within application. However it is not necessary to quote them, a brief summary of their provisions will suffice. Section 91 of the Courts of Justice Act 1924, provides that the rule making authority for the District Court shall have jurisdiction to make rules, to be styled the ‘District Court Rules’, for the regulation of practices and procedures before the District Court generally, including on the question of costs.
. Section 12 of the Courts of Justice Act 1936, was a forerunner of s.17 of the 1981 Act. It provided for a limitation on the amount of the applicant's costs in certain High Court actions, where the applicant had proceeded in that court, when his claim could have been accommodated within the jurisdiction of a lower court. The section provided that where the amount of the judgment recovered came within the jurisdiction of the Circuit Court, the applicant would only be entitled to recover such costs as would be recoverable if the action had been brought in the Circuit Court, unless the judge hearing the action granted a special certificate under the section allowing for recovery of High Court costs.
. Section 141 of the Legal Services Regulation Act 2015 provides that a County Registrar, on a taxation of costs, shall have regard to the principles relating to legal costs specified in schedule 1 to that Act. Schedule 1 provides that in adjudicating on costs, a legal costs adjudicator shall apply the principles in adjudicating on the costs as to whether the costs had been reasonably incurred and whether the costs are reasonable in amount. In determining whether the costs are reasonable in amount, a legal costs adjudicator shall consider the matters set out in schedule 1, which include: the complexity and novelty of the issues involved in the legal work; the skill or specialised knowledge relevant to the matter which the legal practitioner has applied to the matter; the time and labour that the legal practitioner has reasonably expended on the matter; the urgency attached to the matter by the client and whether this requires or required the legal practitioner to give priority to that matter over other matters; the place and circumstances in which the matter was transacted; the number, importance and complexity of the documents that the legal practitioner was required to draft, prepare or examine; where money, property or an interest in property is involved, the amount of the money, or the value of the property, or the interest in the property concerned; together with a number of other matters as specified therein.
. Order 53 of the District Court Rules, as...
To continue reading
Request your trial