Richard O'Donovan v County Registrar for County Cork
| Jurisdiction | Ireland |
| Judge | Ms. Justice Murphy |
| Judgment Date | 05 May 2021 |
| Neutral Citation | [2021] IEHC 307 |
| Docket Number | [RECORD NO. 2018 37 JR] |
| Year | 2021 |
| Court | High Court |
and
[2021] IEHC 307
[RECORD NO. 2018 37 JR]
THE HIGH COURT
JUDICIAL REVIEW
JUDGMENT of Ms. Justice Murphy delivered on the 5th day of May, 2021
The issue before the court is whether the notice party, Cork City Council, is liable to pay the applicant's costs of an ex parte application for a judicial review and an uncontested application for certiorari and various declaratory reliefs.
On the 1st November 2012 the applicant had an accident when the bicycle he was cycling along the public roadway hit a pothole causing him to fall from his bicycle. His solicitor, having conducted necessary investigations, concluded that the applicant had a stateable claim in negligence against Cork City Council for the injuries, loss and damage which he had sustained in the fall. The requisite application was made to PIAB on the 2nd September 2014. Cork City Council refused consent to an assessment by PIAB and accordingly an authorisation to commence personal injuries proceedings was issued to the applicant by PIAB on the 17th December 2014.
A personal injuries summons issued out of Cork Circuit Court office on the 14th May 2015 alleging negligence and breach of duty and breach of statutory duty against Cork City Council as a consequence of which, the applicant alleged, that he had suffered personal injuries, loss of damage. The personal injuries summons wasn't served until the 23rd December 2015. Messrs. Ronan Daly Jermyn solicitors entered an appearance on behalf of notice party on the 11th January 2016. A week later, the said firm of solicitors served an extensive notice for particulars. The particulars were replied to on the 10th August 2016 and approximately a month later, a full defence was filed on behalf of Cork City Council in which the applicant was put on proof of all matters pleaded by him. A notice to produce was served with the defence. Because the defence as delivered put all material facts in issue, the applicant's solicitor deemed it appropriate to seek discovery of Cork City Council's records detailing any remedial works undertaken by it at the accident locus. In the circumstances of the case, the onus was on the applicant to establish misfeasance on the part of Cork City Council. Discovery was sought on the 22nd of February 2017 in respect of a trial which was then listed for hearing on the 10th March 2017. It is not clear from the papers whether or not an order for discovery was made, but in any event, the applicant's claim was settled shortly before trial for the sum of €9,500 plus costs (including any reserved costs) to be taxed in default of agreement.
The amount of the award was paid promptly to the applicant and thereafter his solicitor began preparation of his bill of costs. On the 4th July 2017 the applicant's solicitors furnished to the notice party's solicitors a bill of costs covering the period from November 2012 when the accident occurred to April 2017 when the claim was settled. The bill of costs contains 145 items inclusive of counsel's fees, expert witnesses, expenses outlays, instruction fee and value added tax, coming to a total of €37,756.83. In the letter accompanying the bill of costs, the applicant's solicitor invited the notice party's solicitor to identify any item or items contained in the bill of costs which it contended should be disallowed in whole or in part and the basis for such an assertion. A week later on the 11th July 2017, the notice party's solicitors acknowledged receipt of the bill of costs and sought some additional supporting vouchers. These were supplied.
Without further query or rejoinder of any kind, the notice party's solicitors wrote to the applicant's solicitor on the 6th September 2017 enclosing a cheque in the sum of €10,201 being “tender in respect of your costs herein”. The applicant's solicitor was invited to either accept and cash the cheque, in payment of his costs, or return same if it was not being accepted. By letter dated the 11th September 2017 the applicant's solicitor rejected the tender of €10,201 and indicated that he was putting that matter in the hands of his legal accountant. In response to that letter the notice party's solicitors wrote what to the court seems a significant letter, dated the 20th September 2017. The letter reads:-
“I acknowledge receipt of the City Council cheque in respect of your costs. However, I would point out that the amounts offered would be in compliance with the county registrar's guideline scale in the Circuit Court. The City Council adheres strictly to that scale in all cases. (emphasis added) Perhaps you might reconsider and let me know if you intend to send your file in circumstances which I feel are unnecessary really given the scale in practice”.
The “scale” being referred to in this letter is a scale devised by the respondent for what are described as “standard cases”.
In November 2006, the respondent issued what is described as a litigation circular, to advise parties as to the amounts likely to be allowed by her, on taxation of costs. The initial circular states that the figures set out should not be interpreted as a scale of costs but an indication only of what fees would be allowed in a “normal” type action. The circular specifies that these figures would not apply to any complex cases or to cases in the equity jurisdiction.
The sum allowed for costs is calculated by reference to the amount of the award rather than work done, an indicative sum of €2,500 plus 12.5% of the award is indicated for cases where liability is in issue. A sum of €2,000 plus 12.5% of the award is indicated for cases where liability is not in issue. Should a case settle before it is listed for hearing, a deduction of 20% would apply. The circular goes on to set out fees allowed for various scheduled items such as motion fees and the like. Indicative outlays for expert reports and court attendances for doctors and engineers are also set out.
The circular was updated with effect from the 1st January 2015 in which the costs allowed are increased somewhat but the format remains the same, i.e. a set amount plus 12.5% of the award. While the circulars state that the sums allowed for costs are not to be interpreted as a scale, in reality the sums specified have been applied in all “standard” or “normal” cases since 2007. The applicant complains that the respondent is not entitled to devise and apply a non – statutory scale of costs to legal costs adjudications. Further, the applicant complains that the respondent is not entitled to determine costs by reference to the quantum of damages received. The system of taxation envisaged by O. 99 of the Rules of the Superior Courts as implemented by O. 66 of the Circuit Court Rules is that items of costs claimed be assessed individually and allowed either in full or in part, or disallowed.
Upon receipt of the notice party's solicitor's letter of the 20th September 2017, the applicant's solicitor issued a summons to tax returnable before Cork County Registrar on Tuesday the 17th October 2017. The notice party's solicitor's response to that summons to tax was to once again forward the payment order from the notice party for €10,201, as a tender against the bill of costs. The applicant's solicitors, on the 13th October 2017, asked for a breakdown of the tender amount. In response the notice party's solicitors furnished a copy of their advices to the notice party as to the tender sum. The contents of the letter make it abundantly clear that the tender sum was arrived at entirely by reference to the respondent's “scale” for “standard” or “ordinary” cases. The major point of difference between the “scale” costs and the bill of costs is the sum claimed and allowed for the applicant's solicitor's professional fee. The sum claimed in the bill of costs is €25,900 while the sum allowed in the breakdown of the tender amount is €1,187 which equates to 12.5% of the agreed damages of €9,500.
The applicant's solicitor retained Flynn O'Donnell, legal costs accountants to represent the applicant at the taxation. The notice party was represented by a solicitor from Ronan Daly Jermyn Solicitors, who act for the notice party. The applicant complains that the taxation hearing was held in the respondent's chambers and not in a courtroom equipped with digital audio recording. According to a post taxation report prepared by Flynn O'Donnell, exhibited in the grounding affidavit, Shane O'Donnell, cost accountant, highlighted to the county registrar that the instant case was far from a normal case and that he noted that while scale costs can never and should never apply, that “even if she was minded to apply scale costs they could only apply to standard cases”. He reports that he highlighted the nature and extent of the work done by the applicant's solicitor which was a direct consequence of the “extraordinarily robust defence of these proceedings”. Again, according to his report, “I put it to the County Registrar that in all cases against these defendants, considerations such as the law in relation to misfeasance, malfeasance, etc., would in and of itself be enough to secure a higher fee than provided for in any scale that she applies”. He reports that the County Registrar did not take in the papers to review; did not ask for sight of any documentation from the file, Mr. O'Donnell reports that he did address the County Registrar on the appropriateness of applying scale costs in the context of s. 27 of the “Court Officer's Act 1995 and the provisions of O. 99 dealing with the manner in which costs are assessed in this jurisdiction”. According to the cost accountant's report, the only input from the notice party's solicitor was to repeat “the mantra...
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