Power v Kavanagh

JudgeMr. Justice Noonan
Judgment Date27 June 2019
Neutral Citation[2019] IEHC 495
Docket Number[2001 No. 379 P]
CourtHigh Court
Date27 June 2019

[2019] IEHC 495


Noonan J.

[2001 No. 379 P]


Summons to tax – Delay – Jurisdiction – Defendant seeking an order dismissing the summons to tax issued by the plaintiff – Whether the High Court had jurisdiction to entertain the defendant’s application

Facts: The defendant, Mr Kavanagh, brought a motion for an order dismissing the summons to tax dated 23rd October, 2017 issued by the plaintiff, Ms Power, on the grounds of delay. A preliminary issue arose prior to the hearing of the motion proper, the issue being whether or not the High Court had jurisdiction to entertain the defendant’s application at all.

Held by Noonan J that the proceedings were brought to a conclusion by the making of a final order on the 14th November, 2005. Thereafter it seemed to him that the court’s jurisdiction was spent save and insofar as legislation and the RSC provide for a limited supervisory jurisdiction to review a decision of the Taxing Master. Noonan J noted that s. 27 (3) of the Courts and Courts Officers Act 1995 expressly empowers the court to review the decision of the Taxing Master; however, that power is limited in nature and is confined to situations where the court is satisfied that the Taxing Master has erred as to the amount of the allowance or disallowance of any item of costs so that the decision is unjust. Thus Noonan J held that the jurisdiction is supervisory rather than ancillary in relation to costs. He held that all of the delay jurisprudence is concerned with the progress of litigation to its final conclusion, that final conclusion being the making of a final order; the processes that follow thereafter exist for the purposes of giving effect to the final order of the court but the court retains no residual jurisdiction in relation to those processes save and insofar as expressly provided for by primary or secondary legislation, including the RSC. He noted that this was not to say that a party aggrieved by unfairness in those processes is left without remedy. Noonan J noted that the essential complaint of the defendant was that there was a want of procedural fairness in the taxation process by virtue of the delay that had occurred and the consequent alleged prejudice to the defendant; these are classic judicial review grounds for seeking to prohibit the continuation of the process. Noonan J noted that the court is routinely concerned with the prohibition of both civil and criminal processes on grounds of unfairness arising from delay. He held that it would have been open to the defendant, and might still be open, to apply for an order of prohibition against the Taxing Master in such circumstances. Noonan J held that the court’s judicial review jurisdiction was more than ample to deal with the complaints made by the defendant in this case. With regard to the estoppel point raised by the defendant, it was not entirely clear to Noonan J what conduct the plaintiff was alleged to have been involved in that was relied upon by the defendant to his detriment such as might give rise to such estoppel. However, even if that point were well founded, Noonan J could not accept that such an estoppel could confer jurisdiction on the court; it either has it or it has not.

Noonan J held that the court did not have jurisdiction to entertain the defendant’s application. Noonan J therefore dismissed the application.

Application dismissed.

JUDGMENT of Mr. Justice Noonan delivered on the 27th day of June, 2019

The within motion has been brought by the defendant in these proceedings for an order dismissing the summons to tax dated 23rd October, 2017 issued by the plaintiff on the grounds of delay. This judgment is concerned with a preliminary issue that arose prior to the hearing of the motion proper, the issue being whether or not the court has jurisdiction to entertain this application at all.


In brief summary, the plaintiff was involved in a road traffic accident on the 17th February, 1998 in which she suffered personal injuries. She instituted proceedings against the defendant in this court which were ultimately settled on the 14th November, 2005 by the defendant's insurance company, Axa Insurance. A final order of the court was made on that day which records:

‘This action being called on for hearing before the court this day at Kilkenny

Whereupon and on hearing what was offered by counsel for the respective parties

And it appearing that a settlement has been reached herein

By consent IT IS ORDERED that the plaintiff's costs including reserved costs be taxed that the defendant do pay the said costs when taxed and ascertained and this action be struck out of the list.’


For reasons which are not particularly material to the preliminary issue, the plaintiff's solicitors did not deliver a bill of costs to the defendant's solicitors until almost twelve years later on the 27th September, 2017 and followed this up with a summons to tax on the 23rd October, 2017. The matter appeared in the Taxing Master's list for the first time on the 13th December, 2017 when it was adjourned to the 28th February, 2018. It was further adjourned on the latter date to the 4th May, 2018 and on the previous day, the 3rd May, 2018, the defendant's solicitors intimated for the first time that they proposed bringing the within application. This motion was issued on the 8th October, 2018.


In moving this application, the defendant primarily relies upon the delay jurisprudence commencing with the seminal judgment of the Supreme Court in Primor v. Stokes Kennedy Crowley [1996] 2 IR 459. In particular, the defendant places significant reliance upon a judgment of this court (Hogan J.) in Harte v. Horan [2013] 2 IR 291. The facts of that case were quite similar to those arising in the present. The plaintiff was involved in a road traffic accident and brought a personal injuries claim which was ultimately settled and ruled by a final order of the court on the 11th July, 2001.


The summons to tax was issued on the 20th January, 2012, some ten and a half years later and the defendant sought to have the taxation struck out on the grounds of delay. Hogan J. applied the Primor principles in holding that the delay was both inordinate and inexcusable and further that the balance of justice favoured the defendant, whom he held to have been prejudiced by the delay.


It is important to note that in that case, neither party raised the issue of the court's jurisdiction to entertain the application. Notwithstanding that, the court had a concern that the application might in substance amount to an application for an order of prohibition against the Taxing Master. However, the court's concern appears to...

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