Nolan v The County Registrar for the County of Waterford and Others

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Ms. Justice Hyland
• Judgment Date: 10 May 2025
• Neutral Citation: [2025] IECA 110
• Year: 2025
• Docket Number: Court of Appeal Record Number: 2024/142

Between/

Kevin Nolan

Plaintiff/Appellant

and

The County Registrar for the County of Waterford, The District Court Rules Committee, The Minister for Justice, Ireland and the Attorney General

Defendants/Respondents

and

Waterford City and County Council, KC Cable Vision Limited and Virgin Media Limited

Notice Parties

[2025] IECA 110

Faherty J.

Meenan J.

Hyland J.

Court of Appeal Record Number: 2024/142

High Court Record Number: 2023/156 JR

THE COURT OF APPEAL

District Court scale – Costs – Right of access to the courts – Appellant arguing that the District Court scale is unlawful – Whether the first respondent’s adjudication was in breach of s. 141 of the Legal Services Regulation Act 2015

Facts: The appellant, Mr Nolan, issued proceedings arguing that the District Court scale and Order 53 Rules 2(1), 2(2) and 13 of the District Court Rules 1997-2014 were unlawful, being in breach of s. 17(4) of the Courts Act 1981, and ultra vires the power of the second respondent, the Rules Committee, that his right of access to the courts was denied and that the adjudication of the first respondent, the County Registrar, was in breach of s. 141 of the Legal Services Regulation Act 2015. The appellant argued that because the scale provided for one fee only for costs of judgment where the case was defended, it was a restriction on the amount of costs recoverable and could not be treated as the doing of a specified thing within the meaning of s. 17(4). The appellant argued that the County Registrar failed to apply the Schedule 1 principles in accordance with s. 141. The respondents accepted that the County Registrar was obliged to apply s. 141 but argued he should be treated as having done so.

Held by the Court of Appeal (Hyland J) that the scale does provide for additional fees not claimed by the appellant: but more fundamentally, Hyland J found that the costs of judgment was the “doing of a specified thing” and thus permitted by s. 17(4), interpreted in the light of the overall policy aim of s. 17 of achieving proportionality between the level of award, and the level of costs incurred in obtaining such an award. Based on the evidence, Hyland J concluded that the County Registrar did not apply s. 141. Hyland J also found that no submissions were made by the appellant to the County Registrar to the effect that he should apply it. Hyland J found that had s. 141 been brought to the attention of the County Registrar, it was quite possible that he could have applied it in a manner compatible with the District Court scale. Accordingly, Hyland J quashed the adjudication order of the County Registrar as the Schedule 1 principles referred to in s. 141 were not applied. Hyland J concluded that, contrary to the appellant’s submissions, his right of access to the court was not breached by the costs regime; he exercised his right of access to the court and obtained a decree of damages. Hyland J held that simply showing that there was discrepancy between the amount he was awarded and the bill of costs that he submitted could not amount to an assertion of denial of access to the courts. Finally, Hyland J found that Order 53 and the Schedule are not ultra vires the power of the Rules Committee to make rules for the District Court under s. 91 of the Courts of Justice Act 1924, since they are matters concerning the practice and procedure in respect of questions of costs within the meaning of s. 91.

Hyland J allowed the appeal in part to the extent that the determination of the County Registrar of 23 January 2023 would be quashed and remitted back to the County Registrar. Hyland J rejected the appeal insofar as all other reliefs sought were concerned and the decision of the High Court was upheld in that respect.

Appeal allowed in part.

NO REDACTION NEEDED

JUDGMENT delivered on the 20 day of May 2025 by Ms. Justice Hyland

Summary of Judgment

1 These proceedings are of some importance as they challenge, not only a costs adjudication of the County Registrar, but also what is colloquially known as the District Court scale of costs – in fact, made up of Order 53 of the Rules of the District Court, and the Schedule of Costs to those Rules (hereafter referred to as the “District Court scale” or the “scale”). The current Schedule is that introduced by S.I. No. 418 of 2023 (District Court (Costs) Rules 2023) but its predecessor was in force at the time of the taxation the subject matter of these proceedings.

2 This judicial review arose out of personal injury proceedings brought in Waterford Circuit Court, where the plaintiff (referred to hereafter as the “appellant”) was awarded damages of €8,000 and a costs order on the District Court scale was made i.e. a differential costs order. This allows for the costs that would have been recoverable had the proceedings been commenced in the appropriate jurisdiction, having regard to the amount of damages awarded. At the adjudication of costs hearing before the County Registrar, the appellant sought €32,986.89. He appears to have recovered €8,755.78 on the basis of the application of the District Court scale by the County Registrar, and the measurement of costs granted by previous orders.

3 The appellant issued the within proceedings, arguing that the District Court scale and Order 53 Rules 2(1), 2(2) and 13 of the District Court Rules 1997-2014 were unlawful, being in breach of s.17(4) of the Courts Act 1981 as amended (the “1981 Act”), and ultra vires the power of the Rules Committee, that his right of access to the courts was denied and that the County Registrar's adjudication was in breach of s.141 of the Legal Services Regulation Act 2015 (the “2015 Act”).

4 Section 17 makes provision for differential costs orders, save for s.17(4), which provides in relevant part that it is unlawful for rules of court to contain or impose any restriction on the amount of the costs recoverable but it is permissible to fix 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. In short, the appellant argued that because the scale provided for one fee only for costs of judgment where the case was defended, it was a restriction on the amount of costs recoverable and could not be treated as the doing of a specified thing within the meaning of s. 17(4). In fact, the scale does provide for additional fees not claimed by the appellant: but more fundamentally, I find that the costs of judgment is the “doing of a specified thing” and thus permitted by s.17(4), interpreted in the light of the overall policy aim of s.17 of achieving proportionality between the level of award, and the level of costs incurred in obtaining such an award.

5 Section 141 of the 2015 Act provides that, on a taxation of costs, a County Registrar shall have regard to the principles relating to legal costs specified in Schedule 1. Schedule 1 identifies a range of principles that should be applied by a legal costs adjudicator on adjudicating upon a bill of costs. There is no equivalent to a County Registrar in the District Court; adjudications on costs are done by the District Court judges and no equivalent provision applies to taxation of costs in the District Court. Perhaps inadvertently, the legislature did not provide for the non-application of s.141 where a differential costs order means that a County Registrar is adjudicating on District Court costs.

6 The appellant argued that the County Registrar failed to apply the Schedule 1 principles in accordance with s.141. The respondent accepted that the County Registrar was obliged to apply s. 141 but argued he should be treated as having done so. Based on the evidence, I conclude the County Registrar did not apply s.141. (I also find that no submissions were made by the appellant to the County Registrar to the effect that he should apply it. Had s. 141 been brought to the attention of the County Registrar, it is quite possible that he could have applied it in a manner compatible with the District Court scale). Accordingly, I quash the adjudication Order of the County Registrar as the Schedule 1 principles referred to in s.141 were not applied.

7 I conclude that, contrary to the appellant's submissions, his right of access to the court was not breached by the costs regime. He exercised his right of access to the court and obtained a decree of damages. Simply showing that there is discrepancy between the amount he was awarded and the bill of costs that he submitted cannot amount to an assertion of denial of access to the courts.

8 Finally, I find that Order 53 of the DCR and the Schedule are not ultra vires the power of the Rules Committee to make rules for the District Court under s. 91 of the Courts of Justice Act 1924 (the “1924 Act”), since they are matters concerning the practice and procedure in respect of questions of costs within the meaning of s.91. The Rules and the Schedule do not contain abstract policy decisions on costs: rather they are concerned with the practice and procedure of same, being granular in nature, detailing as they do the level at which costs are to be awarded variously by reference to the item of work, the value of the award, the nature of the case, the identity of the person who carried out the work and so on, with a requirement for revision every three years.

Order 53 of the District Court Rules

9 Order 53, Rule (2) provides as follows:-

“(1) Save as otherwise provided, the costs specified in each scale in the Schedule of Costs are the only lawful costs.

(2) The Court may, where appropriate in the special circumstances of a case, to be specified by the Court, award an amount for costs and/or counsel's fees in excess of the amount provided in the Schedule of Costs.

(3) The costs in the Schedule of Costs are in every instance exclusive of and in addition to any sum allowed as...