Thomas Loomes Practising Under The Style and Title of Thomas Loomes and Company v Rippington and Others
| Jurisdiction | Ireland |
| Judge | Mr. Justice Allen |
| Judgment Date | 31 March 2023 |
| Neutral Citation | [2023] IECA 90 |
| Docket Number | Appeal Number: 2022/217 |
| Court | Court of Appeal (Ireland) |
and
[2023] IECA 90
Ní Raifeartaigh J.
Allen J.
Butler J.
Appeal Number: 2022/217
THE COURT OF APPEAL
CIVIL
Professional services – Costs – Bill of costs – First appellant appealing against the judgment and order measuring the costs of legal professional services provided by the respondent to the appellants and giving judgment against the first and second appellants in that sum – Whether the judge erred in law in failing to observe the rules of natural justice, fair procedures and due process in granting the award of costs to the respondent
Facts: The plaintiff/respondent, Thomas Loomes and Company Solicitors, sought to recover professional fees from the defendants/appellants, Ms Rippington, Mr Rippington and Ms Banahan, which were incurred when they were instructed to act on behalf of the defendants. The first defendant appealed to the Court of Appeal against the judgment and order of the High Court (Meenan J) made on 5th May, 2022 measuring the costs of legal professional services provided by the plaintiff to the defendants in the sum of €55,641.79 and giving judgment against the first and second defendants in that sum, as well as the costs of the proceedings. On 24th August, 2022, the first defendant filed a notice of appeal against the judgment and order of Meenan J which set out 39 grounds over eight pages. Following the first directions hearing on 4th November, 2022 the notice of appeal was replaced by an amended notice of appeal dated 8th December, 2022 which set out two grounds: (1) the judge erred in law in failing to observe the rules of natural justice, fair procedures and due process in granting the award of costs to the plaintiff; and (2) the judge gave endorsements to the plaintiff’s costs accountants, Connolly Lowe, in the absence of any evidence supporting his endorsement, the judge acted as an expert in the area of cost accounting, the court failed to provide impartiality in the hearing, and justice and equity were denied to the defendants.
Held by Allen J that the High Court judge erred in failing to clearly identify the core issue before him which was to decide whether the plaintiff’s claim for costs should be assessed by the court as a claim for professional services or the bill of costs sent for adjudication, and in his approach to the measurement of the claim. Allen J held that the first defendant’s appeal must be allowed. Allen J thought that the judge may have been blindsided by the first defendant’s other submissions. As to whether the action should be remitted to the High Court or the bill sent for adjudication, Allen J recalled the observation of Hogan J in Landers v Dixon [2015] IEHC 155 that no judge of the High Court would see himself or herself as possessing expertise in costs equivalent to that of a legal costs adjudicator. Allen J noted that the bill of costs in this case identified 215 items of work over 112 pages. Allen J held that the work of determining what work was done and the value of the work would necessarily take time and expertise. That work, in Allen J’s view, would be better and more efficiently done by a legal costs adjudicator than by a judge of the High Court.
Allen J allowed the appeal and substituted an order that the bill of costs delivered by the respondent to the appellants be adjudicated.
Appeal allowed.
EX TEMPORE JUDGMENT of Mr. Justice Allen delivered on the 31st day of March, 2023
. This is an appeal by the first defendant (“Ms. Rippington”) against the judgment and order of the High Court (Meenan J.) made on 5 th May, 2022 measuring the costs of legal professional services provided by the plaintiff (“Mr. Loomes”) to the defendants in the sum of €55,641.79 and giving judgment against the first and second defendants in that sum, as well as the costs of the proceedings.
. In late March, 2011 Ms. Rippington consulted Mr. Loomes about a form of will dated 8 th March, 2011 apparently made by her sister, Celine Murphy, who had died on 15 th March, 2011. Thereafter Mr. Loomes acted for Ms. Rippington until 1 st August, 2012 when Ms. Rippington filed and served a notice discharge. Ms. Rippington was dissatisfied with the service which had been provided by Mr. Loomes. Mr. Loomes, for his part, thought that Ms. Rippington had been a difficult and demanding client.
. In 2013 Mr. Loomes had a bill of costs drawn and served on Ms. Rippington for a total of €61,144.60, made up of a professional fee of €45,237.23 plus VAT, and €5,502.81 for outlay. With credit for €8,040 which had been paid on account, the sum claimed was €53,104.60.
. By summary summons issued on 28 th January, 2014 Mr. Loomes instituted High Court proceedings seeking judgment in that sum. The special indorsement of claim did not give the date of the bill of costs but indicated that Mr. Loomes had given the defendants the option of taxing the costs which, it was said, they had failed, neglected, and refused to do.
. Mr. Loomes' motion for liberty to enter final judgment was referred to the court list by the Master and by order of the High Court (Murphy J.) made on 19 th October, 2015 the action was remitted to plenary hearing. Following the delivery of a statement of claim on 15 th December, 2015 and a defence and counterclaim on behalf of Ms. Rippington and the second defendant on 30 th May, 2016 the action was heard by the High Court (Meenan J). on 14 th January, 2020.
. On 6 th March, 2020 Meenan J. gave a written judgment ( [2020] IEHC 237) in which he concluded that Mr. Loomes was entitled in principle to be paid for his legal professional services and that the amount recoverable might be determined either by way of an adjudication of costs or might be measured by the court. He said that he would hear the parties in relation to that.
. In the course of his judgment on 6 th March, 2020, Meenan J. identified the action in which Mr. Loomes had acted for Ms. Rippington – by which the defendants in these proceedings had sought to condemn the will of Ms. Murphy – as but one of a number of proceedings initiated by Ms. Rippington and the other defendants against numerous individuals which were almost invariably unsuccessful at first instance and appealed with a similar result. These proceedings, he noted, were in addition to various unsuccessful complaints to the Law Society and ultimately, an Isaac Wunder order was made against Ms. Rippington was by Simons J. on 24 th May, 2019. Meenan J. roundly rejected the bald allegation by Ms. Rippington that the services which had been provided by Mr. Loomes were “not up to standard” and condemned as an abuse of process her wholly unsupported allegation of professional negligence.
. Following the delivery of the judgment of the High Court on 6 th March, 2020 there was a hiatus in the action for two years. On the hearing of the appeal neither party could confidently account for it but the Courts Service Online shows that it was adjourned from 6 th March, 2020 until 27 th March, 2020 when it was adjourned generally. If the parties could not remember it can confidently be inferred that it was adjourned generally by reason of what came to be the first COVID-19 lockdown. The case was restored to the list for 5 th May, 2022 on the application ex parte of counsel for Mr. Loomes on 30 th March, 2022 and shortly thereafter Ms. Rippington was given notice by letter of the listing.
. The case came back into the list for further hearing on 5 th May, 2022. Counsel for Mr. Loomes asked that the costs – that is to say the value of the work done by Mr. Loomes and which was the subject of the bill of costs – would be measured. Ms. Rippington opposed that application and asked that the costs be sent for adjudication. She went on, however, to suggest that:-
“If this matter goes to the cost adjudicator … The costs have to be taxed and if those remain, if so, it remains an opportunity not only to reduce the bill but to open a path back to the court … for potentially a fraud.”
. The judge recalled that he had given his judgment on 6 th March, 2020 and asked Ms. Rippington whether she had obtained an expert report disputing the costs. Ms. Rippington said that she had not because, she said, she had been relying on the matter going to plenary hearing and she handed in the order of Murphy J. of 19 th October, 2015. Meenan J. then said that:-
“Well, I'm dealing with a specific matter … arising out of my judgment in which I said that the court had jurisdiction to measure costs or in the alternative to send it off to the costs adjudicator. It has now been indicated to me that the plaintiff wishes to have the court rule on these costs, to measure the costs and that's exactly what I propose to do.”
. Ms. Rippington then suggested that the proceedings had been stalled for eight years and that it was she who had called on the proceedings because, she said, she was living under dreadful harassment and intimidation from her solicitor outside of court. The judge then said:-
“All right. Very good. Well listen Mrs. Rippington, I don't want to unnecessarily prolong matters, but the issue before the court is a very net issue and I'll repeat again, and it's the last time that I'm going to repeat it, and that is that in a written judgment two years ago I found that you were – that there were professional fees due and owing, to the plaintiff solicitor in this matter, notwithstanding the fact that you opposed the application. And it therefore falls for the amount of those professional fees to be measured. The court has jurisdiction, I'm satisfied, to measure those costs, or in the alternative to send them to a legal costs accountant or, sorry, the costs adjudicator. So, I am going...
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Scotchstone Capital Fund Ltd and Another v Ireland and Another
...A further decision of this Court was brought to our attention at the hearing of the appeal. In Loomes (p/a T. Loomes & Co.) v Rippington [2023] IECA 90, the Court of Appeal overturned an order measuring the costs of legal professional services provided by the plaintiffs to the defendants. T......