Price v Douglas

• Jurisdiction: Ireland
• Judge: Mr. Justice Garrett Simons
• Judgment Date: 22 September 2023
• Neutral Citation: [2023] IEHC 526
• Court: High Court
• Docket Number: 2020 No. 35 CA

Between

Kenneth Price

Plaintiff/Appellant

and

Ann Douglas (As Personal Representative of Patricia O'Callaghan)

Defendant/Respondent

[2023] IEHC 526

2020 No. 35 CA

THE HIGH COURT

CIRCUIT APPEAL

Costs – Garnishee application – Legal Services Regulation Act 2015 s. 169 – Plaintiff appealing against an order directing that the plaintiff pay costs – Whether each party should bear its own costs

Facts: The plaintiff, Mr Price (the creditor), on 14 June 2012, obtained judgment in Circuit Court proceedings against Ms O’Callaghan (the debtor). The judgment was in the sum of €21,000, together with an order for taxed costs. The debtor died and Ms Douglas (the debtor’s personal representative) was substituted as defendant. Ms Douglas was the sister of the late Ms O’Callaghan. The creditor sought to enforce the outstanding balance of the judgment debt by way of a garnishee application made ex parte on 13 December 2019. The garnishee application related to a dwelling house at Churchtown, County Dublin (the dwelling house). The matter came before the High Court by way of an appeal from the Circuit Court in respect of the garnishee application. The appeal was confined to the question of costs only. The creditor submitted that the proceedings became moot as the result of an external event, and that, accordingly, the appropriate order should have been that each party bear its own costs. The order of the Circuit Court had, instead, directed that the creditor pay the costs. Simons J decided, in the exercise of his discretion under s. 169 of the 2015 Act, that each party should bear its own costs of the proceedings before the Circuit Court. Accordingly, Simons J allowed the appeal and set aside the costs order made by the Circuit Court on 24 January 2020. As to the costs of the appeal itself, Simons J’s provisional view was that, in circumstances where the personal representative did not contest the appeal, no order of costs should be made. The creditor applied to recover the legal costs of the appeal against the personal representative. The application was predicated on correspondence sent on behalf of the creditor to the personal representative’s solicitor during the period 31 January 2022 to 4 March 2022. The gist of that correspondence was to the effect that the creditor would be agreeable to going “back to back” on legal costs if the personal representative would consent to the appeal being allowed. If accepted, that offer would have resulted in the setting aside of that part of the Circuit Court order which had directed the creditor to pay the legal costs of the proceedings before that court. Each party would bear its own costs of the appeal proceedings before the High Court. It was expressly stated in the correspondence that the creditor would rely on the content of same to support an application that the personal representative should pay the legal costs incurred by the creditor from 18 February 2022 onwards. The creditor contended that he was entitled to recover his legal costs on the basis that he had been entirely successful in the appeal, and further had made a reasonable offer to settle the appeal proceedings which was not accepted by the personal representative at the time.

Held by Simons J that, having had regard to the chronology, the personal representative acted reasonably in her conduct of the litigation and the earlier pre-joinder correspondence was not determinative of the allocation of legal costs. Simons J held that the appropriate outcome, in the interests of justice, was that each party bear its own costs of the appeal. Having had regard to the provisions of ss. 168 and 169 of the Legal Services Regulation Act 2015, Simons J held that there would be no order in respect of the costs of the appeal to the High Court; rather, the appropriate outcome, in the interests of justice, was that each party bear its own costs of the appeal.

Simons J held that the formal order of the court was to the effect that the appeal would be allowed, and the costs order made by the Circuit Court on 24 January 2020 would accordingly be set aside.

No order as to costs.

Appearances

Fintan Hurley for the plaintiff instructed by Neil Buckley Solicitor

No appearance on behalf of the defendant

JUDGMENT of Mr. Justice Garrett Simons delivered on 22 September 2023

INTRODUCTION

1 This matter comes before the High Court by way of an appeal from the Circuit Court. The principal judgment on the appeal was delivered on 17 July 2023: Price v. Douglas [2023] IEHC 407. This supplemental judgment addresses the allocation of the legal costs of the appeal proceedings and considers, in particular, the relevance of earlier correspondence offering to compromise the appeal. Section 169(1)(f) of the Legal Services Regulation Act 2015 provides that a court, in allocating legal costs, is required to have regard to any offer of settlement made.

PROCEDURAL HISTORY

2 The procedural history has been set out in detail in the principal judgment and it is not necessary to repeat same here. It is sufficient for present purposes to highlight the following aspect of the procedural history. There has been a change in the identity of the parties to the proceedings since the appeal was lodged in the Central Office of the High Court on 31 January 2020. More specifically, the original respondent to the appeal, Patricia O'Callaghan, died on 26 November 2020. An order was made by the High Court (Meenan J.) on 24 March 2022 substituting Ms. O'Callaghan's personal representative, Ann Douglas, as defendant/respondent to the proceedings (“ the personal representative”).

3 Thereafter, there were complications in relation to the service of the proceedings on the personal representative. This is addressed in an earlier judgment delivered by me on 12 May 2023: Price v. Douglas [2023] IEHC 247. An order was ultimately made deeming the service, which had previously been effected on the personal representative's solicitor, to be good service on the personal representative herself. (It should be explained that the solicitor has never been on record in the proceedings and thus the default position is that the proceedings should have been served on the personal representative personally). This order was subject to the right of the solicitor to apply to have service set aside. In the event, no such application was made. This order was perfected on 12 June 2023.

4 Relevantly, the very earliest date upon which the appeal proceedings may be regarded as having been properly served on the deceased's personal representative is 27 January 2023. See affidavit of service of 7 February 2023.

5 The provisional view on legal...