Legal Costs/Mediation
Mediation Act 2017 “The fees and costs of a mediation shall be reasonable and proportionate to the importance and complexity of the issues at stake and to the amount of work carried out by the mediator” (s.20)
Section 21. “In awarding costs in respect of proceedings referred to in section 16 , a court may, where it considers it just, have regard to—(a) any unreasonable refusal or failure by a party to the proceedings to consider using mediation, and (b) any unreasonable refusal or failure by a party to the proceedings to attend mediation, following an invitation to do so under section 16 (1).“
This section is now widely accepted as providing no effective costs protection to a party in litigation against the other parties decision to refuse to mediate.
On 01/01/1854 Common Law Procedure Amendment Act (Ireland) 1853 was commenced giving the Courts its power to make the plaintiff pay the defendant the costs of defending those counts on which he had failed (section 60/LX).
From a historical perspective this legislation followed the end of the Irish Famine in 1852 which may or may not be related.
“The famine proved to be a watershed in the history of Ireland. As a direct consequence of the famine, Ireland’s population of almost 8.4 million in 1844 had fallen to 6.6 million by 1851….. The famine coincided with a period of renewed expressions of nationalism in Ireland in the mid-19th century. ” ref: https://www.britannica.com/event/Great-Famine-Irish-history/Great-Famine-relief-efforts
In a “party party” legal costs adjudication the question is, not whether the legal professionals are to be paid their costs, but how much of these costs are to be taxed/adjudicated as costs between party and party.
In 1838 Irish Judge Philip Cecil Crampton (1783 – 1862) in one of his rulings reminded the parties that an Irish court though applying English law was “not regulated by the practice in England, but by the established practice of the Irish courts. [sic the law of the “lex fori”]”
The will of the Irish people is said to be expressed through the legislation enacted on their behalf by the “legislature” and shows an unforgiving will towards any consumer/plaintiff – although not found to have engaged in any dishonest motives – who was unsuccessful/
In contrast the will of the British people is a little more forgiving and benign and in the UK Qualified One-Way Cost Shifting (QOCS) was introduced on 01/04/2013 to limit the liability of a claimant for the defendant’s costs in personal injury and related claims.
In the Irish legal system a defendant (typically with insurance cover so no personal liability) can decide to fully defend such a claim (upon receiving “preliminary advices in respect of issues surrounding liability and quantum” which presumably were they had no “liability” and/or the claim was without merit or could be defeated) and chose to spend substantial legal costs defending what they perceive as a worthless or doomed to fail claim.
If things go their way at trial and they can persuade the Court their view of the claim (being unmeritorious) was correct and then seek and obtain an award/order of legal costs the defendant/insurer can pursue this losing plaintiff to pay their “party party” legal costs defending this unmeritious claim and apart from the protection of an “adjudication” process with reviews to the High Court and various appeal routes – be then given full access to the enforcement powers of the Courts to recoup this “debt”.
It is open to a defendant who does not wish to expend substantial legal costs defending doomed or bound to fail claims bring a motion to the Court pursuant to O. 19, r. 28 of the Rules of the Superior Courts 1986 as amended asking the Court to dismiss the claim on the grounds it does not “disclose a stateable cause of action” against the defendant.
Order 19 rule 15 of the Rules of the Superior Courts 1986 as amended also states:
” The defendant or plaintiff (as the case may be) must raise by his pleading all matters which show the action or counterclaim not to be maintainable, or that the transaction is either void or voidable in point of law, and all such grounds of defence or reply, as the case may be, as if not raised would be likely to take the opposite party by surprise, or would raise issues of fact not arising out of the preceding pleadings, as, for instance, fraud, Statute of Limitations, release, payment, performance, facts showing illegality either by statute or common law, or Statute of Frauds. “
The utility of Court Orders are enhanced in the jurisdiction of England and Wales where Courts are empowered to make “unless orders” (e.g. unless payment was made of the sums ordered) a litigant would be debarred from making further representations in their proceedings in accordance with the jurisdiction considered in Days Healthcare UK Ltd v Pihsiang Machinery Manufacturing Co Ltd [2006] EWHC. This jurisdiction permits a litigants’ legal representative attend hearings on their behalf.
ENGLAND AND WALES SOLICITORS REGULATORY AUTHORITY provides Guidance on its website as below
“Situations where these duties have not been properly balanced
The following situations describe unacceptable behaviours and how these might arise in practice. They look at both pre-action activity, including matters settled out of court, as well as conduct in legal proceedings. We then illustrate some situations with case studies that we have seen in practice at the end of this guidance.
These are examples of where solicitors have failed to balance properly duties owed in the public interest, to the court, to their client and to certain third parties. Some of the situations involve the solicitor improperly prioritising the client’s interests above others. They include situations where duties owed to others and to the court have been overlooked. In others, even the client’s best interests have not been served.
1. Making allegations without merit
This involves solicitors bringing claims with insufficient investigation of their merits or of the underlying legal background. We understand, for example, that this has occurred in relation to some disrepair claims against social landlords. This is where claims have been issued before a proper inspection or survey has taken place and disrepair has been alleged where none exists.
Solicitors bringing claims may be reckless as to the merits of the case – or actively uninterested in the merits – and aim to pressure on an opponent to settle the case outside of court.
Some solicitors rely on the asymmetry of legal understanding which may exist between the defendant and the solicitor.
There have also been cases where letters of claim included a threat to reveal publicly embarrassing information if the opponent fails to settle or an unjustified threat of liability for significant costs. Such an approach could amount to a failure to act with integrity.
Threatening to issue proceedings, or to defend a claim in such cases, can also result in solicitors failing to act in the best interests of their clients. Or where their clients are encouraged to proceed with litigation where there is little legal merit in doing so. This might arise because of a conflict with the solicitor’s own interest in generating fee income. Or where a solicitor wants to pursue the litigation notwithstanding the lack of merit in order to keep a longstanding client ‘happy’, and fails to act with sufficient independence. ” (emphasis added)
ref: https://www.sra.org.uk/solicitors/guidance/conduct-disputes/
One of the perhaps unintended consequences of the practice now in the Court of Appeal of Ireland to case manage cases is increased costs for the parties with evidence of some solicitors instructing both senior and junior counsel to attend these “Direction Hearings” listings seeking then to recover on a party party basis (where they are ultimately awarded costs in their favour) both senior counsel (€1500.00) and junior counsel (€1000.00) plus the solicitors fees for turning up to effectively update the court on the progress/define issues/timetable for submissions etc – this practice can only serve to disable “access to justice”. O.86A r16 (2) RSC requires the attendance of only one Counsel
“The directions hearing shall be attended by the solicitor responsible for the conduct of the appeal and by a counsel instructed in the appeal, if such be the case. “
It is accepted that the European Court of Human Rights Article 6 ( Right to a fair trial) also encompasses the Appeal process and these practices/oppressive costs can only serve to interfere adversely with a parties’ human rights under Article 6.
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Caroline Fanning Solicitors provides advices to parties for legal costs applications.
The highly esteemed Supreme Court Justice MacMenamin in the family law case D v D as part of the obiter dicta of his Judgment stated it would be in their best interests for parties to assess at various stages potential costings to inform their cost/benefit analysis of pursuing issues.
However in practice where a litigant wishes to rely on this dicta (against an opponent with an apparent lack of budgetary focus to the proceedings) by motioning the Court to compel parties to furnish costs estimates they run the very strong risk of losing this and perversely be punished by the Court with a Costs Order against them for having sought a relief from the Court intended to try and save time/money in deference to “the obiter dicta of a learned Judge of the Supreme Court must be treated seriously and with respect” ref Blessington Heritage Trust Ltd. v. Wicklow County Council 1998 Decision of McGuinness J. retired Judge of the Supreme Court (2000 – 2006), Judge of the High Court (1996 – 2000), Judge of the Circuit Court (1994 – 1996).
Update June 2024
It is heartening to see a recent direction from a High Court Judge in a neighbour dispute for their legal advisers to produce estimates of legal costs and perhaps the Irish Judiciary are starting to engage now with the above dicta of now retired Mr Justice MacMenamin. It is also well established practice in England and Wales for “the court will ordinarily require the parties to give particulars of costs incurred and to be incurred at various stages of the proceedings for the purposes of case management.” recognising that this “will also facilitate settlement because the parties will be able to predict with reasonable accuracy what further costs are likely to be incurred if the case proceeds. “
Of course some litigants may be reluctant to do this as they prefer to be at large in terms of their costs and to only provide a bill post verdict when they are safely removed from the scrutiny of the trial court. Also some litigants may not want to disclose their retainer terms to the Court involving “success fees” as per case below in England and Wales. Given how international the Irish legal profession is now similar retainer terms may be in existence in this jurisdiction* and go someway to explaining the determined efforts of some legal representatives in contentious business (*Ref: Attorneys’ and Solicitors’ Act 1870 permits analogous provisions noting in their “Section 6 review of the Legal Services Regulation Act 2015 and Solicitors Acts 1954 to 2015” Submissions dated 29/9/2021 “It is the recommendation of the Law Society that that the Solicitors Remuneration Act 1881 and the Attorneys’ and Solicitors’ Act 1870 be repealed in their entirety. “) :-
“The terms of the October Letter provided that Mr Berezovsky would pay for AG’s services under the retainer in the following way:-
a) If the Main Action did not succeed (by way of final judgment or favourable settlement) he would pay AG for work done at a reduced hourly rate of approximately 50% of the firm’s standard charges known as the “Reduced Fee“.
b) If Mr Berezovsky obtained any “Benefit” (as defined) namely a favourable judgment or order or settlement from pursuing the Main Action, defined as “Level 1 Success”, then he would pay AG’s fees for work done at the firm’s standard charging rate.
c) If Mr Berezovsky recovered “any Benefit” as a result of which he made a recovery (whether in the form of assets or money) with an aggregate value of at least the Trigger A Amount (with asset value(s) to be taken at the date of recovery) or made an aggregate recovery of at least the Trigger B Amount (or assets to that value) across the Chancery Actions, a 100% success fee would be added to AG’s standard hourly charges being defined as “Level 2 Success”.
(iv) On 23 October 2012, Mr Berezovsky signed an irrevocable payment instruction in AG’s favour to pay the firm out of any monies currently or in future paid to AG what was due for fees and disbursements [MRH 3 4-5] [“the Irrevocable Agreement”].” ref: Addleshaw Goddard LLP v Wood & Anor
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The opacity of the area of legal costs in Ireland is the subject of much legitimate criticism. Credit should be given to former solicitor now Judge of the High Court of Ireland Her Honourable Justice Eileen Roberts for her practical insight and guidance into this area of the law in her 2023 decision in Diaz v Lohan where she stated:
“47. In my view, the CLCA cannot be criticised for failing to look behind the costs orders made by the High Court in favour of the Liquidator. Those costs orders are made. The role of the CLCA is to determine the appropriate quantum of the costs on the basis that the court orders reflect the matters in respect of which costs should be assessed. It forms no part of the CLCA’s role to revisit the basis of the High Court’s costs orders to determine whether they relate to applications that were necessary or should otherwise be amended in some manner. That would be a matter for the Court of Appeal had the costs orders been appealed to it, which they were not. I am satisfied that the CLCA correctly identified his role in this regard where he states in his Determination (para 57) that “there are no grounds for Mr Lohan to argue at this late stage that the process before the High Court was ineffective”.
If a costs order contains an error due to say careless drafting or wrongly recording what the Court intended etc there is no duty or onus on the Office of the Legal Costs Adjudicator to correct or remedy these defects/errors/deficiences on the face of the Order. Where the Order has not been appealed (which involves additional costs) and the appeal timeframe has expired it has the potential to cause an unjust result to the party adversely prejudiced by the defects/errors/deficiences. Caroline Fanning Solicitors with the invaluable assistance of Dermot Conway Solicitors, Maura McNally SC and Seamus Breen BL and Raphael O’Leary BL overcame this obstacle/injustice by relisting the matter before the Judge who made the (defective) Order in circumstances where the appeal period had expired and the bill of costs based on the (defective) order lodged for adjudication – further details below.
The 1937 Constitution of Ireland Art. 40.3: 1 states as follows:-
“The State guarantees in its laws to respect and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen. 2. The State shall, in particular, by its laws protect as best it may from UNJUST attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen. ” (emphasis added).
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In a recent decision Court of Appeal of Ireland dismissed Atlantic Troy Limited‘s reliance on an offer made by its counsel to the counsel of Patricia Sweeney as “entirely misplaced” on the basis that “Such offer is clearly protected by implicit “without prejudice” privilege and cannot be relied on in support of an application for costs.” going on to state “Accordingly I am satisfied that the offer made by counsel on the 26th September, 2023 must be disregarded for the purpose of the proper allocation of the costs of the appeal.”
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Party and party costs awarded to a successful litigant are the property of that litigant and not the solicitor acting for the client ref: In Re Castle Brand Limited (in liquidation) unreported High Court Carroll J. 2/10/1989
A reasonably careful and prudent solicitor may advise a client upon the conclusion of legal proceedings that their services are no longer required where it is open to the client to engage a legal cost accountant directly or to personally (with the inherent risks attached) deal with the taxation/adjudication/settlement of legal costs.
Under Legal Services Regulation Act 2015 s141 a County Registrar, on a taxation of costs, shall have regard to the same principles relating to legal costs specified in Schedule 1 of the 2015 Act as the Office of the Legal Costs Adjudicator. i.e. that the costs have been reasonably incurred and that the costs are reasonable in amount.
The Court of Appeal of Ireland is alive to how parties or their legal representatives to litigation may use the courts’ costs jurisdiction to seek to oppress or disable access to justice by bringing applications in bad faith motivated to raise the bar in the “costs” not unlike playing a game of poker where the objective is for the other players to fold.
In Atlantic Shellfish Limited & anor -v- The County Council of the County of Cork & ors the Court of Appeal of Ireland stated-
“36. It follows, that the court should not make the order sought if satisfied that the application is brought by a party who knows that an invitation from the court will for good reason be refused and/or where satisfied that the applicant has NO REAL INTEREST in the ADR proposed but is motivated to make the application knowing that the refusal will allow them proceed to trial while, so to speak, holding the sword of DAMOCLES over their opponent until the very end of the litigation.” (emphasis added)
From the High Court Search on www.courts.ie this dispute occupied the Irish Superior Courts for some 16 years of litigation (2002- 2018)
To adopt the words of now retired High Court Judge Murphy referring to Cork City Council which apply with equal force to The County Council of the County of Cork “is a public body, an emanation of the state. It is represented by one of the state’s leading legal firms. As a public body, it has a particular responsibility to act properly in the conduct of litigation.”
How much did this litigation cost the Irish taxpayer and how was it allowed occupy the Irish Courts for nearly two decades.
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UCD Law Professor the late Nial Osborough taught students of Jurisprudence that in more ancient times it was believed a trip to the casino might yield a more satisfactory result than seeking a remedy through the courts.
The tactics and rules of poker can be read on www.pokerzone.com for anyone interested in exploring these analogies further/ e.g.
Bluff “To wager aggressively with the intent of causing all opponents to fold, done while holding a hand that has almost no chance of winning in a showdown; to make aggressive wagers in an attempt to represent a weak hand that has almost no possibility of winning as though it were a strong hand. Noun The act of representing a weak hand as a strong one through aggressive wagers. (see also “Double bluff”)
Declaration/Declare; “a form of play in which the verbally stated (as was eloquently enunciated by a prominent senior counsel ~ the “opponent” was confusing “pleadings” with “evidence”. Of course every good lawyer will know “Submissions (by counsel) and pleadings do not constitute and are not evidence”) value of a hand is used to determine the winner, rather than using the actual highest hand value possible for a given set of cards. If a hand value that is not actually held is declared, the player making that declaration is typically disqualified from the pot.”
When a Court draws attention to these tactics and the identities of the parties it is not a decision made lightly – In Seredych v The Minister for Justice (Unapproved) [2020] IESC 62 (13 October 2020) by Supreme Court Justice Marie Baker:-
“94. I would here like to make some observations regarding certain comments and remarks of the trial judge in his principal judgement and in the judgement refusing leave to appeal, Seredych v. The Minister for Justice and Equality [2019] IEHC 891, where he called into question the professional integrity and ability of counsel on both sides, and criticised each of them in different ways. In particular the judgement on the leave application contained a number of quite remarkable and personally insulting comments regarding the competence and trustworthiness of counsel for the State and the professional competence of both senior counsel. 95. The comments made were on any view offensive and humiliating and were capable of being damaging to the career of counsel and personally upsetting. 96. Counsel were identified by their names. It goes without saying that neither had opportunity to respond.”
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Caroline Fanning Solicitors endorses the views of England and Wales Court of Appeal Lord Justice Ward
“What I have found profoundly unsatisfactory, and made my views clear in the course of argument, is the fact that the parties have between them spent in the region of £100,000 arguing over a claim which is worth about £6,000. In the florid language of the argument, I regarded them, one or other, if not both, of them, as “completely cuckoo” to have engaged in such expensive litigation with so little at stake. At the time of writing this judgment I rightly do not know whether any, or if so what, attempts have been made to settle this case and the remarks that follow are of general application. I raise that matter again in this judgment to make the point, as firmly as I can, that this is a paradigm case which, if it could not have been settled by the parties themselves, customer and dealer, then it behoved both solicitors to take the firmest grip on the case from the first moment of instruction. That, I appreciate, may not always be easy, but perhaps a copy of this judgment can, at the first meeting, be handed to the client, bristling with righteous indignation, in this case the customer who has paid a small fortune for a motor car which does not meet his satisfaction, and the dealer anxious to preserve the reputation of his prestige product. “This case cries out for mediation”, should be the advice given to both the claimant and the defendant. Why? Because it is perfectly obvious what can happen. Feelings are running high, early positions are taken, positions become entrenched, the litigation bandwagon will roll on, experts are inevitably involved, and, before one knows it, there will be two/three day trial and even, heaven help them, an appeal. It is on the cards a wholly disproportionate sum, £100,000, will be to fight over a tiny claim, £6,000. And what benefit can mediation bring? It brings an air of reality to negotiations that, I accept, may well have taken place in this case, though, for obvious reasons, we have not sought to enquire further into that at this stage. Mediation can do more for the parties than negotiation. In this case the sheer commercial FOLLY could have been amply demonstrated to both parties sitting at the same table but hearing it come from somebody who is independent. At the time this dispute crystallised, the car was practically brand new. It would not have been vastly different from any demonstration car. The commercial possibilities are endless for finding an acceptable solution which would enable the parties to emerge, one with some satisfaction, perhaps a replacement vehicle and the other with its and Audi’s good name intact and probably enhanced, but perhaps with each of them just a little less wealthy. The cost of such a mediation would be paltry by comparison with the costs that would mount from the moment of the issue of the claim. In so many cases, and this is just another example of one, the best time to mediate is before the litigation begins. It is not a sign of weakness to suggest it. It is the hallmark of COMMONSENSE. Mediation is a perfectly proper adjunct to litigation. The skills are now well developed. The results are astonishingly good. Try it more often.” (emphasis added).
ref: Egan v Motor Services (Bath) Ltd [2007] EWCA Civ 1002 (18 October 2007)
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The role of the legal advisor is to be a passive advisor and the use of false speculative pleadings does not serve the interests of Justice nor of the client motivated to trigger upset/emotions in the opponent which increases legal costs. A recent Law Society of Ireland CPD seminar by a Maynooth University academic stated only 5% of cases end up in a trial and it is “emotion” that leads them there.
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In Australia in determining the liability for costs the Courts have looked at the merits of a parties case and its prospects of success
Langford v RCL Cruises Ltd t/as Royal Caribbean Cruises [2023] FCA 626 (19 June 2023) Federal Court Of Australia Honourable Justice Jackman
“[1] There are six sets of proceedings before me arising out of the eruption at 2.11 pm on 9 December 2019 of a stratovolcano located 48 km to the north-east of New Zealand’s North Island in the Bay of Plenty, known as Whakaari or White Island. The applicants in the proceedings were passengers on a cruise aboard the vessel MV Ovation of the Seas (Ovation of the Seas). Most of the applicants were participating in a shore excursion known as the “White Island Volcano Experience Cruise and Guided Exploration” (the Shore Excursion), although some remained on board the vessel. A large number of the passengers who participated in the Shore Excursion were killed or injured.
[17] Accordingly, the proceedings in Florida have been commenced in the jurisdiction where RCCL is headquartered, and which offers the applicants legitimate juridical advantages. Although documents filed by RCCL in the proceedings in Florida refer to the Complaints in Florida as a “brazen” act of “forum shopping” (sic referring to the victims (or their surviving relatives bringing a case on their behalf) of the volcanic eruption many of whom lost family members – 22 people died of which 17 were Australians) and/or suffered life changing injuries), no such submission has been made to me, and RCL and RCCL do not submit that the advantages sought to be gained by commencing proceedings in Florida are not legitimate juridical advantages.
[37] There is also a serious question whether the position of RCL and RCCL in resisting the applications for temporary stays is so weak that, properly advised, they should have known that they had no realistic chance of success, and accordingly may be liable to pay costs on an indemnity basis. ” (emphasis added)
Jesse Langford was 19 years old when he suffered severe injuries and lost his parents and sister who all died from injuries caused by the volcanic eruption on 9/12/2019 and features in the powerfully moving Netflix “The Volcano” – one of the executive producers being Leonardo DiCaprio – along with some other survivors such as American newlyweds Matt and Lauren Urey who were “honeymooning on a Royal Caribbean cruise and had booked their excursion to Whakaari/White Island, off the coast of New Zealand’s North Island, through the same company months earlier. While the brochure advertised the site as the country’s most active volcano, Matt Urey said, he assumed it was safe. The only precautions listed were a requirement to wear closed-toe shoes and a warning that those with mobility issues or in wheelchairs should not subscribe. ” ref: https://www.theguardian.com/world/2023/jul/12/couple-who-survived-white-island-volcano-tell-court-they-werent-warned-of-danger
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Retired High Court Judge Murphy Irish Times, the 19th of June 2023 calls out sharp practices designed to damage access to justice “Big firms want to brief somebody (sic barristers) who will charge a fortune so they can justify charging a fortune.”
This issue of the relationship between Counsels fees and Solicitors fees is nuanced as recognised by a different High Court Judge:
““It must often happen that the brief fee and instruction fee will (or should) vary in inverse ratio one to another depending on whether a case is
essentially one of advocacy or one of fact.”
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A Bill of Costs may contain charges so gross that the insertion of them in the bill is of itself evidence of fraud and oppression from which the client will be relieved ref State (Gallagher Shatter and company) v De Valera
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May 2022 Caroline Fanning is an Associate Member of the Institute of Legal Costs Accountants and offers this service to clients both from a mediation perspective and drawing up bills of costs for parties.
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There may be a conflict of interest between a client and their own legal advisers (recognised in England and Wales jurisdiction in refining laws on CFAs etc) particularly where a client is a wealthy client and their legal advisors might be motivated to profit from maximum fees themselves rather than compromise an action (“why kill your goose who lays you golden eggs”). This rationale should underpin public policy on penalising parties for refusing to talk to the other side but rather pursuing a determined strategy where the budgetary focus lies not on saving the client money in compromising an action but lies solely on making profits for the legal advisers who do not want to lose a revenue stream.
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Section 150 of the Legal Services Regulation Act 2015 (LRSA) came into force on 07/10/2019 ( dealing with legal practitioners i.e. solicitors and barristers legal costs ) replacing the previous legal costs regime under Section 68 of the Solicitors (Amendment) Act 1994 and aims to enhance transparency.
Caroline Fanning succeeded in an EU consumer package holiday case in securing a reduction of some €14,500.00 (€26,896.00 to €12,500 approx) on a PARTY PARTY BILL OF COSTS, OUTLAYS AND DISBURSEMENTS from Noble Shipping Law solicitors Arklow for the travel agent ( being their third set of solicitors ) and cruiseline served on an EU consumer on foot of a High Court of Ireland Costs Order made on 8th day of September 2020 and amended some 4 and a half months later by the same High Court Judge who had made the initial Order on the grounds that the initial Costs Order has been made on inaccurate submissions to the Court.
Trailfinders Ireland Limited/Royal Caribbean Cruises on the EU consumer had sought some €26,896 from an EU consumer plaintiff for a DISCONTINUED interlocutory application never given a hearing date and never listed for hearing but adjourned generally due to COVID and but for unilateral activities of Trailfinders Ireland Limited/Royal Caribbean Cruises would never have occupied one minute of Court time prior to its discontinuance. When the High Court ruled on 18/01/2021 it had been given “untrue..incorrect” submissions and never made aware of email dated 22/7/2020 from plaintiff to NSL and High Court registrar it stopped the costs at the date of the email being 22/07/2020 as per statutory legislative regime for discontinuance Trailfinders Ireland Limited/Royal Caribbean Cruises reduced their Party Party Bill of Costs from €26,896 to €18,140 and accepted €12500.00 through negotiations (€14,396 reduction from first bill). Factoring in amended Order stopped the costs at 22/7/2020 and reconciling this with the above figures a multi-billion dollar business * and international travel agency were billing an EU consumer €8,756 (being the difference in the bill of costs when this appearance on 8/9/2020 was deducted) for appearing at a for mention date listing to seek their “costs” for a discontinued motion with the junior counsel for the EU Consumer plaintiff charging €300.00 for her attendance being some €8,456 less than the fees being charged to a multi billionaire dollar cruise company and international travel agency who had 2 senior counsel in attendance.
- K.T. V. ROYAL CARIBBEAN CRUISES, LTD 931 F.3d 1041 (11th Cir. 2019)
United States Court Of Appeals For The Eleventh Circuit Jul 24, 2019 ” multi-billion dollar business like Royal Caribbean”
Royal Caribbean Cruises/Trailfinders Ireland Limited despite being put on notice by the plaintiff in writing on 17/06/2020 “This motion is adjourned generally now as the Courts cannot cater currently for oral testimony.” by email turned up in the High Court of Ireland on 29/06/2020 knowing the Plaintiff would not be there in the Court and proceeded to ask the High Court of Ireland to put the adjourned plaintiffs’ motion before their nominated Judge.
Royal Caribbean Cruises/Trailfinders Ireland Limited had previously emailed directly this nominated High Court of Ireland Judge on 25/05/2020 asking him to hear the plaintiffs’ filed motion as follows “We accordingly should be grateful for the Judge’s indication as to whether he will hear this motion” using the email address of his Judicial Assistant (which the Courts Service stated in an email on 26/05/2020 “Judges do not enter into correspondence regarding matters before the Court. I consider correspondence with a Judges Judicial Assistance as correspondence with their Judge and should not happen.”)
The now retired Mr. Justice Peart in the March 2024 edition of the Law Society of Ireland “Gazette” magazine points out that one distinguishing feature between mediation and litigation is that in litigation a party does not get to chose their Judge but you can chose a mediator.
Mr. Justice Charles Meenan acceded to this request on 29/06/2020 by Trailfinders Ireland Limited/Royal Caribbean Cruises in the absence of the plaintiff and transferred the plaintiffs’ adjourned motion to the nominated Judge of Trailfinders Ireland Limited/Royal Caribbean Cruises whom they had previously emailed on 25/05/2020.
Trailfinders Ireland Limited/Royal Caribbean Cruises knew the plaintiff had objected on 26/05/2020 to their nominated Judge hearing the plaintiffs’ motion for reasons specified in correspondence to Trailfinders Ireland Limited/Royal Caribbean Cruises .
In amending its own Costs Order the main issue revolved around the fact the notice of discontinuance served by the EU consumer on 22/7/2020 was never brought to the attention of the High Court of Ireland despite the legal team for Trailfinders Ireland Limited/Royal Caribbean Cruises and Registrar of the High Court of Ireland having acknowledged receipt of it on 22/07/2020.
S169(4) of the Legal Services Regulation Act 2015 states
“Unless the court before which civil proceedings were commenced orders otherwise, or the parties to those proceedings agree otherwise, a party who discontinues or abandons the proceedings after they are commenced (including discontinuance or abandonment of an appeal) is liable to pay the reasonable costs of every other party who has incurred costs in the defence of the civil proceedings concerned until the discontinuance or abandonment.”
As the highly respected former Chief Justice of the Supreme Court of Ireland stated in one of his judgments whilst sitting as a High Court of Ireland Justice “There is, therefore, a difference in substance between a dissolution by notice and a dissolution by the court” the EU consumer had unambiguously given notice on 22/7/2020 in the following terms
“the plaintiffs motion….is now withdrawn”
IN ruling as follows
IT IS ORDERED that the said Order made by this Honourable Court on the 8th day of September 2020 be amended by deleting the costs paragraph
“IT IS ORDERED that the Plaintiff do pay to the Defendant the costs of this Motion and Order such costs to be adjudicated in default of agreement between the parties”
and replacing it with the following paragraphs
“IT IS ORDERED that the Plaintiff do pay to the Defendant the costs of re-entering the Plaintiffs (withdrawn) contempt Motion to amend (and/or set aside) the said Order made on the 8th day of September 2020 up to and including the 22nd day of July 2020 (the date of withdrawal of said Motion by the Plaintiff by way of email to the High Court Registrar) such costs to be adjudicated in default of agreement between the parties
the High Court of Ireland Mr Justice Bernard Barton now retired stated as follows:
“Even though it’s a final order to deal with a mistake or omission or to deal with an error where the judgment does not reflect properly the intention of the court.
now as I say it is absolutely clear and in fact the DAR confirms to me what in fact was my recollection when we were discussing this in court which is that I had understood that the withdrawal of the motion had been pretty well imminent that is to say up to the time literally before the hearing before the court.
correspondence was not these emails which have now been opened to the court as a ground as evidence for reviewing the court order disclose that in fact this motion was that not only did the plaintiff withdraw this motion by correspondence email to the defendant solicitor but also did it formally in the sense of notifying the registrar that this is what she wanted to do.
my intention was to give costs up to the time that the matter was withdrawn.
now as I say I understood from what was said to me and I have listened to this carefully and from the submissions that were made that the withdrawal had taken place essentially within 24 hours or either that morning or the previous afternoon.
I knew nothing about the email of the previous July.
nobody brought that to my attention.
the law that I have been referred to is absolutely unquestioning I am conscious of it I have applied it myself in other cases the court may not intervene in an order in a final order save in exceptional circumstances and it certainly may not do so on the caprice of the judge hearing the matter.
this particularly under the rule the jurisdiction of the court to intervene is limited and the boundaries of those limits have been set out in a number of cases but one of course is to correct what in fact if the order does not reflect the intention of the court the full intention of the court then the court is entitled to correct that eh to correct the order so that the order reflects what the court intended and my intention as I said myself one of the grounds for actually allowing the costs for making the order for costs and this seems to me is fundamental and one of the grounds or one of the reasons I gave that I gave the principal reason that I gave was on this application the one reason which counts and which is clear in my judgment for actually refusing the application from the plaintiff to stay or reserve the question of costs was the fact that it was just withdrawn instantly like right now just before motion came on before the court and that transpires not to be the case
now the jurisdiction may be exercised in other words it may be exercised in my view to prevent injustice between the parties in other words if it is brought to the courts attention that there was a critical error in the order and that that would do an injustice between the people between the parties well then the court was jurisdiction to intervene to correct that and the justice of the matter is that costs were undoubtedly incurred by the defendant up to and including the moment that the plaintiff decided to withdraw it and the withdrawal it seems was prompted as a result of remarks that I had actually made to the plaintiff I think within a couple of days before she decided to withdraw it I actually said a couple of things to her I don’t want to go repeating this now but it appears she acted on that she wasn’t there in court she was represented by counsel her solicitor wasn’t there either possibly that the motion had been withdrawn at such an early stage simply was not brought to my attention and I proceeded on a premise which it actually transpires is actually untrue but not untrue incorrect and that needs to be rectified so I am going to exercise my jurisdiction and the jurisdiction vested in the court to amend the order to permit the defendant to have its costs on the motion but up until the date on which it was withdrawn by email not to the defendant but to the registrar
that is the formal notification which I think in fairness is within 24 hours or even the same day.
so, as I say the defendant had undoubtedly occurred costs by up to and including that time and the jurisdiction which I have to speak to my own order does not otherwise allow me to vary my own order and the order will otherwise remain as perfected.
so, the adjudication can take place but order will recite fact and adjudicator can be so advised.
There were people in the court that knew the truth but said nothing.”
High Court of Ireland in Teva (Canada) Ltd v Panalpina World Transport (Ireland) Ltd (Approved) [2021] IEHC 304 (30 April 2021) stated senior counsels have a particular obligation to the court to ensure that the material placed before the court is clear and accurate and that counsel are properly briefed.
Simpson v Governor of Mountjoy Prison & Ors (Approved) [2020] IESC 52 (31 July 2020)
para 40 In Shelley-Morris, there had been a mixed outcome. The defendant was successful in varying the High Court order, but the plaintiff retained the award for general damages. The Court, therefore, made no order for costs in the appeal, but, significantly, held that the conduct of a plaintiff was an important factor for the Court to consider in the exercise of its discretion as to costs (pp. 266 – 267).
41. By contrast, in Grimes v. Punchestown Developments Company Limited [2002] 4 IR 515, Denham J., speaking for this Court (Denham, Hardiman and McCracken JJ.) held that costs need not necessarily follow the event (pp. 523–524). She cited with approval dicta of Hamilton C.J. in T.F. v. Ireland (cited at para. 33 above) where, in a test case involving issues of importance to parties in some 3,060 cases in which issues had been made under the Judicial Separation and Family Law Reform Act, 1985, the Court awarded the costs of the appeal to the plaintiff. The outcome of Mahon v. Keena (cited at para. 33 above) shows the very broad scope of the distinction where, even though the defendants succeeded, the Court awarded costs against them.
46. Clearly, if other cases of this type proceed in a court setting, in whatever jurisdiction, it will be necessary to engage in rigorous case management. Courts will require the parties to define at an early stage what exactly is alleged and the nature of a defendant’s defence. Parties will be made aware that such decisions may have consequences in costs – on either side. Both plaintiffs and defendants have procedural rights. Defendants have the right to make a lodgement in court, or an offer without prejudice as to costs. But plaintiffs, too, have a right to know what case a defendant will make in court.
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Thomas Cosgrove, Plaintiff v. John Ryan and Electricity Supply Board, Defendants [1999 No.
11074P]; [2008] IESC 2, [S.C. No. 358 of 2003]
Supreme Court 14th February, 2008
p538 Held by the Supreme Court (Denham, Hardiman and Geoghegan JJ.), in allowing the appeal, apportioning liability and remitting the case to the High Court for the assessment of damages, 1, that, in any action for negligence, but particularly one relating to dangerous things, it was not incumbent on a plaintiff to negative every conceivable possibility of absence of negligence provided reasonable proof was put forward.
2. That, although there was no law that required a defendant to give evidence at all, let alone any particular evidence, a plaintiff who put forward a prima facie case that had not been answered was usually entitled to succeed.
EU law requires Proportional Assessment and there is obligation on the courts to protect rights conferred by EU law – €130000+ costs have the appearance of being disproportionate.
In Pepper Finance Corp v Cannon & Anor [2020] IESC 2 (04 February 2020) cited
AIB v. Counihan [2016] IEHC 752 in which Barrett J. had held that a court considering a consumer contract must conduct such an assessment of the fairness of the terms of its own motion in accordance with the European Communities (Unfair Terms in Consumer Regulations) 1995
“78. The line of authorities on the Directive cited by the parties includes Pannon GSM v Gyorfi (C-243/08, EU:C:2009:350), where the CJEU was asked whether the consumer protection provided by the Directive required the national court to carry out a review of the fairness of contractual terms of its own motion, even where they had not been challenged in court by the consumer.
79. The Court commenced its analysis with the statement that the system of protection introduced by the Directive was based on the idea that the consumer was in a weak position vis-à-vis the seller or supplier, in relation to both bargaining power and level of knowledge, and could be led to agree to terms without being able to influence their content. The aim of compensating for that imbalance would not be achieved if it was left to the consumer to raise the unfairness of the terms, and therefore effective protection could only be attained if the national court acknowledged that it had power to evaluate the terms of its own motion and to rule that the consumer was not bound by an unfair term. Consequently, the national court’s role was not limited to a power to rule on the possible unfairness of a term, but also consisted of an obligation to examine the issue if it had available to it the legal and factual elements necessary for that task.”
Proportionality of costs must also be assessed in the context of rights under the EU Charter of Fundamental Rights and the European Convention on Human Rights esp. consumer protection and fair trial rights and a costs bill of some €135,000.00 would act as a barrier to justice and send a chilling effect and make it very difficult for all other potential aggrieved consumers to seek a remedy or vindicate their rights.
The failure of a defendant to engage meaningfully with a plaintiff and a blatant egregious lack of budgetary focus on dealing a case fairly and on the merits could be said to be unfair.
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Serious consideration should be given by a plaintiff who can opt to sue in the UK where their defendant is a UK based company as the legal costs regime in the UK protects an honest losing consumer unlike the Irish legal costs regime which heralds back to the 13th Century legal costs “punitive” genesis.
In the UK Qualified one-way costs shifting was introduced for personal injury claims from 1 April 2013. This means that defendants will generally be ordered to pay the costs of successful claimants but, subject to certain exceptions, will not recover their own costs if they successfully defend the claim.
QOCS does not apply to proceedings where the claimant has the benefit of a CFA or ATE insurance policy which was entered into before 1 April 2013 so that the success fee / premium continue to be recoverable.
Legal costs can depart from normal rule costs follow the event such as Court exercising discretion in “unusual” circumstances involving procedural or substantive unfairness.
In KRA & anor v Minister for Justice & Equality (No. 3) [2016] IEHC 421 (24 June 2016) the High Court of Ireland expressed surprise senior counsel would not concede it was inappropriate to resile from earlier legal representations to the court and refused Leave to appeal against legal costs order (KRA No. 1) in favour of losing applicant party (a Nigerian plaintiff seeking unsuccessfully to be allowed remain in Ireland with her school going children) stating ” 20. More generally, it is more or less unheard-of for a party to disclaim any liability to be bound by its representations to the court, so the conduct which influenced the making of a costs order against the respondent is unlikely to be repeated by other parties. The decision on costs therefore does not significantly transcend the individual case so as to warrant leave to appeal (see Kenny v. An Bord Pleanála (No. 2)[2001] 1 IR 704 (McKechnie J.)). “
“But it is also advocacy at its most practical. Any other course would have been unworkable for the simple reason that the earlier representation had been relied upon.
2. Just how unworkable has been demonstrated in the present case where an alternative approach was taken. When it was drawn to the attention of leading counsel for the respondent that the submissions and objections being made, at a very late stage in the day after the hearing proper had concluded, were radically inconsistent with concessions and submissions made at an earlier point by his junior counsel, the court was metaphorically afforded an insouciant shrug and was simply told that these were good points and would be persisted in – even though the earlier representations had been relied upon by the other participants in the proceedings and the court itself. The fallout from that ill-founded strategy continues in the present application. “
Caroline Fanning solicitor a Mll Approved Mediator and trainee Member of the Institute of Legal Costs Accountants (ILCA) provides parties to a dispute over Legal Costs mediation as a means of attempting to resolve the dispute. Participation in mediation shall be voluntary at all times. The fact that proceedings have been issued in relation to the dispute shall not prevent the parties engaging in mediation at any time prior to the resolution of the dispute.
Currently in Ireland the Legal Costs Adjudicators Office has the statutory remit to resolve disputes relating to Legal Costs.
This amounts to a stressful process for parties facing penalties such as 8% stamp duty and can become a protracted process adding further burdens to a party who has resolved their substantive dispute.
Any party who is dissatisfied with the allowance or disallowance by the Legal Costs Adjudicator of the whole or part of any item (including any special allowance) may, within the time permitted by section 160(1) of the 2015 Act, apply to the Legal Costs Adjudicator by notice in the Form No. 4 in Part V of Appendix W for consideration of the decision or decisions specified in the notice and for a determination under that section. The notice shall list in a concise form the matters or items, or parts thereof, to which the decision of the Legal Costs Adjudicator being objected to relates and the grounds and reasons for such objections. A copy of the notice shall be served on the other party to the adjudication not later than 14 days before the return date assigned for the hearing of the application.
An application to the Court under section 161(1) of the Legal Services Regulation Act 2015 shall be made by motion on notice to the persons specified in section 161(2) of the Legal Services Regulation Act 2015. The notice of motion shall be filed in the Central Office and a copy thereof filed in the Office of the Legal Costs Adjudicators. The motion shall be heard and determined by the Court on the evidence brought in before the Legal Costs Adjudicator, and no further evidence shall be received on the hearing thereof, unless the Court otherwise directs.
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Bills of Costs
“There is another matter, which I wish to mention. The instructions fee for the solicitors was claimed, and whoever drew up the bill considered it necessary to set out the pleadings in the action and counsels advice on proofs in full. The result is that five of the very large sheets of paper used for the preparation of the bill of costs are taken up with a statement written in the usual legal jargon of what was in the pleadings, and in the advice on proofs. The Taxing Master, however, can get all this information from the pleadings and the advice on proofs. I know that this ridiculous method of claiming an instruction fee has been in use for many years. But I hope that the two very experienced Taxing Masters will tell those who draw these bills that they disapprove of the practice and they will if necessary penalise it. ref: 1967 Judgment of High Court Judge John Kenny (1917–87), later Supreme Court Judge (from 1975) “
ref: S.I. No. 584/2019 – Rules of the Superior Courts (Costs) 2019 (irishstatutebook.ie)
Default two thirds rule where junior counsel would be paid 2/3 of senior counsel fee mow prohibited by s149 Legal Services Regulation Act 2015
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