THE COURT OF APPEAL
APPROVED
NO REDACTION NEEDED
Court of Appeal Record Number: 2024/142
High Court Record Number: 2023/156 JR
Neutral Citation Number [2025] IECA 110
Faherty J.
Meenan J.
Hyland J.
BETWEEN/
KEVIN NOLAN
PLAINTIFF/ APPELLANT
- AND -
THE COUNTY REGISTRAR FOR THE COUNTY OF WATERFORD, THE DISTRICT COURT RULES COMMITTEE, THE MINISTER FOR JUSTICE, IRELAND AND THE ATTORNEY GENERAL
DEFENDANTS/ RESPONDENTS
AND
WATERFORD CITY AND COUNTY COUNCIL, KC CABLE VISION LIMITED AND VIRGIN MEDIA LIMITED
NOTICE PARTIES
JUDGMENT delivered on the 20 day of May 2025 by Ms. Justice Hyland
Summary of Judgment
- These proceedings are of some importance as they challenge, not only a costs adjudication of the County Registrar, but also what is colloquially known as the District Court scale of costs - in fact, made up of Order 53 of the Rules of the District Court, and the Schedule of Costs to those Rules (hereafter referred to as the "District Court scale" or the "scale"). The current Schedule is that introduced by S.I. No. 418 of 2023 (District Court (Costs) Rules 2023) but its predecessor was in force at the time of the taxation the subject matter of these proceedings.
- This judicial review arose out of personal injury proceedings brought in Waterford Circuit Court, where the plaintiff (referred to hereafter as the "appellant") was awarded damages of €8,000 and a costs order on the District Court scale was made i.e. a differential costs order. This allows for the costs that would have been recoverable had the proceedings been commenced in the appropriate jurisdiction, having regard to the amount of damages awarded. At the adjudication of costs hearing before the County Registrar, the appellant sought €32,986.89. He appears to have recovered €8,755.78 on the basis of the application of the District Court scale by the County Registrar, and the measurement of costs granted by previous orders.
- The appellant issued the within proceedings, arguing that the District Court scale and Order 53 Rules 2(1), 2(2) and 13 of the District Court Rules 1997-2014 were unlawful, being in breach of s.17(4) of the Courts Act 1981 as amended (the "1981 Act"), and ultra vires the power of the Rules Committee, that his right of access to the courts was denied and that the County Registrar's adjudication was in breach of s.141 of the Legal Services Regulation Act 2015 (the "2015 Act").
- Section 17 makes provision for differential costs orders, save for s.17(4), which provides in relevant part that it is unlawful for rules of court to contain or impose any restriction on the amount of the costs recoverable but it is permissible to fix the amount recoverable by any person as and for the costs and expenses incurred by him in the doing of any specified thing in any particular form of action or other proceeding. In short, the appellant argued that because the scale provided for one fee only for costs of judgment where the case was defended, it was a restriction on the amount of costs recoverable and could not be treated as the doing of a specified thing within the meaning of s. 17(4). In fact, the scale does provide for additional fees not claimed by the appellant: but more fundamentally, I find that the costs of judgment is the "doing of a specified thing" and thus permitted by s.17(4), interpreted in the light of the overall policy aim of s.17 of achieving proportionality between the level of award, and the level of costs incurred in obtaining such an award.
- Section 141 of the 2015 Act provides that, on a taxation of costs, a County Registrar shall have regard to the principles relating to legal costs specified in Schedule 1. Schedule 1 identifies a range of principles that should be applied by a legal costs adjudicator on adjudicating upon a bill of costs. There is no equivalent to a County Registrar in the District Court; adjudications on costs are done by the District Court judges and no equivalent provision applies to taxation of costs in the District Court. Perhaps inadvertently, the legislature did not provide for the non-application of s.141 where a differential costs order means that a County Registrar is adjudicating on District Court costs.
- The appellant argued that the County Registrar failed to apply the Schedule 1 principles in accordance with s.141. The respondent accepted that the County Registrar was obliged to apply s. 141 but argued he should be treated as having done so. Based on the evidence, I conclude the County Registrar did not apply s.141. (I also find that no submissions were made by the appellant to the County Registrar to the effect that he should apply it. Had s. 141 been brought to the attention of the County Registrar, it is quite possible that he could have applied it in a manner compatible with the District Court scale). Accordingly, I quash the adjudication Order of the County Registrar as the Schedule 1 principles referred to in s.141 were not applied.
- I conclude that, contrary to the appellant's submissions, his right of access to the court was not breached by the costs regime. He exercised his right of access to the court and obtained a decree of damages. Simply showing that there is discrepancy between the amount he was awarded and the bill of costs that he submitted cannot amount to an assertion of denial of access to the courts.
- Finally, I find that Order 53 of the DCR and the Schedule are not ultra vires the power of the Rules Committee to make rules for the District Court under s. 91 of the Courts of Justice Act 1924 (the "1924 Act"), since they are matters concerning the practice and procedure in respect of questions of costs within the meaning of s.91. The Rules and the Schedule do not contain abstract policy decisions on costs: rather they are concerned with the practice and procedure of same, being granular in nature, detailing as they do the level at which costs are to be awarded variously by reference to the item of work, the value of the award, the nature of the case, the identity of the person who carried out the work and so on, with a requirement for revision every three years.
Order 53 of the District Court Rules
- Order 53, Rule (2) provides as follows: -
"(1) Save as otherwise provided, the costs specified in each scale in the Schedule of Costs are the only lawful costs.
(2) The Court may, where appropriate in the special circumstances of a case, to be specified by the Court, award an amount for costs and/or counsel's fees in excess of the amount provided in the Schedule of Costs.
(3) The costs in the Schedule of Costs are in every instance exclusive of and in addition to any sum allowed as recovery of value-added tax and all actual and necessary outlay as is allowed.
(4) The Schedule of Costs must be revised no less frequently than once every three years.
(5) In any case where the Court is of the opinion that there is no appropriate scale of costs provided, it may measure the costs.
Factual Background
- The proceedings arose out of a costs order made by the Waterford Circuit Court in personal injury proceedings entitled "Kevin Nolan (Plaintiff) v Waterford City County Council, KC Cable Vision Limited and Virgin Media Limited (Defendants) Record Number 2019/364" (the "personal injury proceedings"). The appellant sought damages for personal injuries suffered by him in an accident on 3 April 2018, when he was walking along the public footpath in Dungarvan, County Waterford and tripped by reason of a hole and/or a defect in the public footpath. Proceedings were issued in the Circuit Court on 20 October 2019. Various parties were named as defendants as the appellant was unclear as to which parties were liable for his injuries. Liability was fully in issue coming up to the hearing, including as between the two sets of defendants.
- A fully contested hearing took place in Dungarvan Circuit Court on 15 December 2021 before Her Honour Judge Doyle She gave judgment in favour of the appellant against KC Cable Vision and Virgin Media and assessed his damages at €8,000. The appellant's claim against Waterford City Council was dismissed. The appellant was awarded his costs against KC Cable Vision and Virgin Media, including all reserved and discovery costs on the District Court scale, with a certificate for counsel. There was also an order in favour of Waterford City Council for its costs on the District Court scale, and an order over for those costs against KC Cable Vision and Virgin Media. This is known as a differential costs order, i.e. an order that allows for the costs that would have been recoverable had the proceedings been commenced in the appropriate jurisdiction having regard to the amount ultimately awarded in damages. Here, because the appellant only recovered damages at a District Court level, he was only entitled to District Court costs despite the fact that the proceedings had been issued and determined in the Circuit Court.
- Following the conclusion of the Circuit Court proceedings, the solicitors for the appellant asked cost accountants to prepare a bill of costs for adjudication. The bill came in at €32,986.89 and was referred for taxation to the County Registrar for Waterford, Mr. James Seymour. A hearing took place on 23 January 2023. A preliminary submission was made on behalf of KC Cable Vision and Virgin Media that the County Registrar was limited to what was allowed by that scale, given that Judge Doyle had ordered costs on the District Court scale. There is an issue about precisely what took place before the County Registrar, in circumstances where the appellant's solicitor, Mr. Burke, swore an affidavit 20 February 2023 setting out his version of events (although without exhibiting any documentation in this regard such as a solicitor's note) and where no evidence as to the adjudication hearing was adduced by the respondents, for reasons discussed below.
- Mr. Burke averred that the County Registrar indicated he was required to tax the party and party costs based on the District Court scale, and that the costs the appellant could recover in respect of the professional fees for solicitor and counsel were limited to those specified in the District Court scale of costs. He averred that, pursuant to the District Court scale, as solicitor he was only entitled to recover €2,250 in respect of his professional fees, exclusive of, and in addition to, outlay, given the level of damages awarded i.e. exceeding €7,000 but not exceeding €9,000. In respect of counsel, he averred the fee recoverable was €800. In fact, Mr. Burke was also entitled to an additional sum for his professional fee as there were additional defendants, but he does not mention this, and it is not clear whether he sought and received it.
- This case is complicated by the fact that, after leave was given to bring judicial review proceedings, but before the hearing of it in the High Court, the new Schedule introduced by S.I. No. 418 of 2023 came into force, which increased the amounts payable. The appellant has dropped his claim that there was a failure to revise the scales within the requisite time period (as required by Order 53, Rule 2(4)) but has not made reference to those revised scales in his affidavit.
- Mr. Burke avers at para. 34 of his affidavit that the shortfall between the costs claimed in the bill of costs and those recoverable pursuant to the Determination of the County Registrar was €24,231.11. That suggests that the amount he recovered was €8755.78 i.e. an amount greater than the award his client received. Mr. Burke also recovered €2,500 plus VAT for the costs of motions for judgment in default of defence on foot of orders made in January, April and July of 2021, as well as the costs of the appellant's engineer in the sum of €3,549.79. Both these additional sums were adjudicated upon by the Country Registrar, the motions because they were covered by previous costs orders made in the Circuit Court and were therefore not covered by the Order of Judge Doyle, and the engineer's costs because they were not covered by the scale. Unfortunately, Mr. Burke failed to set out precisely how much he had recovered for all items.
Judicial Review proceedings
- The appellant being dissatisfied with the amount of costs, sought and was granted leave to seek judicial review by Order of Meenan J. made on 8 May 2023. The reliefs sought in the Statement of Grounds include an Order of certiorari quashing the Taxation Determination of the County Registrar of 23 January 2023, a declaration that the Schedule of Costs in Schedule 3 of the District Court Rules 2014 and Order 53 Rules 2(1), 2(2) and 13 of the District Court Rules 1997-2014 are ultra vires and unlawful and a declaration that the Rules and Schedule did not constitute a restriction on the amount of costs recoverable within the meaning of s.17 of the Courts Act 1981 as amended (the "1981 Act"), along with a remittal of the matter to the County Registrar for County Waterford. The appellant also sought a declaration that the second and third respondents were in continuing breach of their statutory duty to revise the Schedule of Costs in Schedule 3 of the District Court (Civil Procedure) Rules 2014, and an order of mandamus seeking to direct them to do so. Because of the adoption of S.I. No. 418 of 2023 after leave was granted, that plea was not advanced.
- Judgment was given by Barr J. [2024] IEHC 253 rejecting the appellant's challenge to the District Court scale and the Determination of the County Registrar. A notice of appeal was filed on 12 June 2024. In the High Court, two principal arguments were made by the appellant. The first was that the District Court scale is incompatible with s.17(4) of the 1981 Act and should be struck down. The second was that the County Registrar failed to comply with s. 141 of the Legal Services Regulation Act 2015 (the "2015 Act"). The appellant also argued that the District Court scale was ultra vires the rule making power of the District Court Rules Committee, either because it was outside the power granted to them by s.91 of the 1924 Act or because it intruded in an area of policy or decision making that was within the sole and exclusive law-making function of the Oireachtas.
- In the appeal submissions, an attempt was made to argue that the District Court scale is also ultra vires because it conflicts with primary legislation, namely s.17(4) and s.141 and s.169 of the 2015 Act. This is not a ground upon which leave was granted and therefore it will not be further considered.
- Although what I will refer to as the "ultra vires" arguments are dealt with in some detail in the written submissions, very little time was given to them by counsel for the appellant at the appeal hearing. A similar approach may have been taken in the High Court given that the trial judge disposes of this issue in summary fashion. I will consider the s.141 and s.17(4) arguments first before considering the ultra vires argument.
Section 17(4) of 1981 Act
- The appellant has launched a full-scale attack on Order 53, Rules 2(1), 2(2) and 13 and the Schedule of Costs by reference to s.17(4), arguing that they are ultra vires and unlawful and/or amount to a restriction on the amount of costs recoverable within the meaning of s.17. As noted earlier, Order 53, Rule 2(1) provides that the costs specified in each scale are the only lawful costs. Rule 2(2) provides that the court may in such special circumstances provide for costs in excess of the amount provided in the Schedule of Costs. Rule 13 provides that where counsel is allowed, the scales of counsel's fees in the Schedule of Costs apply provided that for proceedings not covered by the scale, the fees must be determined by the court having regard to the scale and the amount involved in the case.
- Section 17 appears under the following heading: "Limitation on amount of plaintiff's costs in certain proceedings." Section 17(4), as inserted by s.14 of the Courts Act 1991, is in the following terms:
"(4) It shall not be lawful for rules of court to contain or impose any restriction on the amount of the costs recoverable by any party from any other party in any action or other proceeding, but nothing in this subsection shall prevent the insertion in rules of court of a restriction on the amount of the costs recoverable which is identical with a restriction imposed by this section nor the fixing by rules of court of the amount recoverable by any person as and for the costs and expenses incurred by him in the doing of any specified thing in any particular form of action or other proceeding."
Decision of trial judge
- The trial judge characterised the key issues in the case as being whether, having regard to s.17(4) and s.141, the District Court Rules Committee acted ultra vires in providing for a scale of recoverable fees, and whether the County Registrar acted ultra vires in applying that scale in the taxation of costs. Having referred to the principles of statutory interpretation as summarised in Heather Hill v An Bord Pleanala [2022] IESC 43, he considered the decision of O'Connor v Bus Atha Cliath [2003] 4 IR 459, where the policy reasons underpinning s.17 of the 1981 Act were articulated by Murray J. O'Connor was a personal injuries case taken in the High Court, where the plaintiff had been awarded the costs of proceedings on the Circuit Court Scale. On appeal, the Supreme Court made an order pursuant to s.17(5) of the 1981 Act for the payment by the plaintiff to the defendant of a sum equal to the difference between defending the proceedings in the Circuit Court and defending them in the High Court. Murray J. discussed the policy reasons behind differential costs orders, noting inter alia that it is in the public interest that claims are brought before the lowest court having jurisdiction to hear and determine the claim with a view to the proper and efficient administration of justice, and for the purpose of minimising the cost of litigation generally and in particular for the parties. Murray J. observed that an unsuccessful defendant should not be "wantonly burdened with the costs of defending a claim in the higher court when it could reasonably have been brought in the lower court".
- The trial judge notes that the key point in the case is whether the conducting of litigation in the District Court from inception to obtaining a decree in a defended case can be regarded as the doing of a specified thing. In an important observation, he observes as follows:
"When one considers that actions in the District Court are intended to be heard with the minimum of formality, so as to provide a fast and cheap method of dealing with relatively minor disputes, the court is satisfied that such a procedure can be seen as the doing of a specified thing, so as to come within the exception to the prohibition on the imposition of scale fees, as contained in the first part of the paragraph in s.17(4) of the 1981 Act."
24. He notes that had the action been brought in the District Court it is likely that it would have been heard with considerably less formality in terms of pleading, and with less delay. He refers to the procedure in the District Court being designed to provide a fast and economic resolution of civil actions, and that in those circumstances the obtaining of a decree following a hearing in a defended case comes within the description of "the doing of a specified thing". He refers to that interpretation being in accordance with the general purpose of the section, as identified in O'Connor, having regard to the fact that there is an absence of any official in the District Court with jurisdiction to tax costs, and it being sensible that there is a scale of recoverable fees to enable people to know what level of legal costs they are likely to face if unsuccessful in a civil action heard in the District Court. He observes that certainty of recoverable fees is desirable, particularly when dealing with relatively modest claims.
Arguments of the parties
- The appellant criticised the decision of trial judge on various grounds. He observed that the only costs recoverable for solicitor and counsel in every case to which the Schedule applies, for all work done by solicitor and counsel, are "the costs of judgments (decree/ dismiss)" in the amounts specified in the Schedule. He pointed out the Schedule limits the recoverable costs of an entire claim, from inception to the obtaining of a decree, to the recoverable costs of the single administrative step of obtaining a decree at the conclusion of the proceedings. He pointed out this is the only right of the appellant to recover and/or be indemnified in respect of party and party costs. He argued that the entitlement to costs contemplated by s.17(4) is transformed by the Rules and Schedule into an entitlement to be paid discrete amounts in respect of discrete procedural steps, none of which need to have any rational connection to work actually expended, or the result achieved.
- I pause here to observe that what he is arguing for here is well beyond the wording of s.17(4) i.e. that there should be an entitlement to have each step of work adjudicated upon by reference to the effort expended, the result achieved, or the work done. That is not something that is envisaged by s.17(4). Section 17(4) explicitly permits the setting of an amount for a discrete step or thing, and therefore cannot be invoked to argue that legal costs may only be set on an individualised basis. It is also difficult to understand how the appellant can argue that s.17(4) contemplates "an entitlement to costs". Section 17(4) does not in my view provide for any entitlement to costs. It is a limiting section that precludes rules restricting the amount of costs, subject to exceptions, but does no more than that. A person who obtained damages but was refused costs, for example based on conduct, could not rely on s.17(4) to argue against such an order.
- The Supreme Court has recently reviewed the law on costs in the case of Little v. Chief Appeals Officer [2024] IESC 53, with Murray J. observing at paragraph 13 that "a careful consideration of the history of the costs jurisdiction of the Irish courts prior to the coming into effect of the LSRA shows both a surprising doubt around the precise source of the power to award costs ..." At no point in the extensive review of the source of the power is there any suggestion that an entitlement to costs derives from s.17(4).
- Returning to the appellant's remaining arguments, he contended that the Rules and Schedule constitute a restriction on the amount of costs recoverable by any party from any other party within the meaning of s.17(4), while conceding that s.17(4) permits the fixing by rules of court of the costs recoverable in the taking of a single discrete step in the proceedings, for example consultation or a drafting of a pleading, based on the reference to "any specified thing". The appellant argued that the trial judge ought not to have referred to the conduct of litigation in the District Court, because one cannot interpret the terms of s.17(4) in the light of the use to which they have been put by the District Court Rules Committee, pointing out that the terms of s.17(4) apply to all of the courts.
- The respondents argued that there is no reason why the doing of any specified thing cannot encompass, as one among several such specified things, the entirety of District Court proceedings of a particular type, particularly considering the monetary jurisdiction of the District Court. They argued that a scale of costs that itemised every individual item of work and the associated fee would be operationally impractical as it would require the District Judge to satisfy themselves that each individual item of work was properly and reasonably incurred. They made reference to academic commentary on the District Court, noting that Byrne and McCutcheon on The Irish Legal System (Bloomsbury Professional, 7th ed. 2020, p.160) observe that the District Court has an important role in the courts structure by ensuring local, and less expensive, venues for people involved in litigation than would be the case were they required to initiate claims in the High Court.
- They further pointed out that in Hosie v Lawless [1927] IR 464, Kennedy C.J., when commenting on the Courts of Justice Act 1924, observed that "the ordinary every-day actions, those not involving very large sums of money, should be in the ordinary course be tried in the local venue by the Circuit Court, or in very small cases, by the District Court". This statement was approved by Walsh J. in State (Boyle) v Nolan [1986] IR 551. They referred to academic commentary by Alcock in "The Law of Costs in Ireland" (Lonsdale, 2020), to the effect that the meaning of s.17(4) of the 1981 Act was to dilute the harsh effects of the loser pays principle. The overall purpose of s.17 as identified in the O'Connor case (discussed above) was invoked as an aid to interpreting s.17(4).
Analysis
- Section 17(4) is a curious section and one that presents certain difficulties of interpretation. I will approach its interpretation on the principles enunciated by McKechnie J. in People (DPP) v Brown [2018] IESC 67 and relied upon by Murray J. in Heather Hill. The first and most important port of call is the words of the statute themselves, with the words being given their ordinary and natural meaning. The words must be viewed in context which may include the immediate context of the sentence within which the words are used, the other subsections of the provision in question, other sections within the relevant part of the act, the act as a whole and any legislative antecedents to the statute/the legislative history of the act. It may also include the mischief which the act sought to remedy. In construing the words, the courts will be guided by the principles of interpretation.
32. The wording of the subsection is not new. Identical wording first appeared in the Courts of Justice Act 1936 and was repeated in the Courts Act 1981. The equivalent section to s.17 in 1936 was in more limited terms than the current section 17, applying only to cases that had been commenced and heard in the High Court but ought to have been heard either in the Circuit or District Court in the areas of tort, breach of promise of marriage, contract, recovery of a liquidated sum and action for ejectment. But the equivalent to s.17(4) i.e. s.12(3), was in identical terms to s.17(4). Nor was there any change to that wording when the 1981 Act was adopted.
- The location of s.17(4) must also be considered. It is situated in s.17, which has been interpreted in the case of O'Connor as being directed overall at limiting legal costs by reference to the jurisdiction in which they ought to have been brought, which in turn is dictated by the amount of damages recovered. In other words, it recognises the relationship between the level at which damages are awarded, and the level of costs incurred in obtaining such an award. All of that is compatible with an acceptance of different levels of costs being recoverable in different jurisdictions, whether this is done through scales of costs (as in the District Court) or a well-established approach on the part of legal costs adjudicators of the level at which they award costs in specific jurisdictions for specific work. Were this not the case, a differential costs order would have no impact.
34. Properly interpreted, I am of the opinion the overall policy aim of s.17 is to achieve proportionality between the level of award and the level of costs incurred in obtaining such an award. It is against this background that the particular words of s.17(4) must be interpreted.
- Before considering the wording of s.17(4), it is important to recall the factual context in which this case arose. The solicitors for the appellant considered that this was a case that merited being brought in the Circuit Court, and initiated proceedings in that Court. The case was heard and determined in the Circuit Court from start to finish, including the measurement of costs by the County Registrar. For obvious reasons, the bill of costs more closely reflects the stages of a Circuit rather than a District Court case.
- In my view, the continued focus by the appellant on the amount recoverable from inception to the end of the case is misplaced given that, had the case been initiated in the District Court - as it ought to, considering the level of damages recovered - it would have followed a different course. The procedure accompanying the determination of a District Court case is designed to be considerably simpler and shorter than that of a Circuit Court case. This is not surprising when one considers that the jurisdictional limit of the District Court is €15,000, whereas the equivalent limit in the Circuit Court is €60,000 for a personal injury case. In other words, the appellant argues by reference to the life of the case that the costs should be considerably greater than those allowable under the scale: but the case in question was run in the Circuit Court, not the District Court, and therefore it is a singularly inappropriate context in which to challenge the scale. Importantly, the appellant does not challenge Order 66, R. 11, i.e. the Circuit Court rule providing for differential costs orders.
- Separately, the appellant criticised the trial judge for interpreting s.17(4) by reference to the operation of the District Court, pointing out that s.17(4) applies to all courts. That is of course true; but it is equally true that, when a judge is called upon to interpret a statutory provision, that exercise must be done in the factual context in which it arises. In this case, the trial judge was asked to treat the District Court Rules and Schedule of Costs as being incompatible with s.17(4) and therefore it was not just appropriate but necessary to consider this question by reference to the way in which the District Court operates.
38. Turning now to the wording of section 17(4), it starts by setting out a general approach i.e. rules of court should not contain or impose any restriction on the amount of costs, and then carves out two very significant exceptions to this approach. The first permits a restriction on the amount of costs recoverable identical with restrictions imposed by "this section". The restrictions in the remainder of the section relate to differential costs orders, with the consequence that it is permissible if rules of court provide for a restriction to reflect the principles of differential costs orders.
39. The second exception, being the one this appeal is concerned with, provides that rules may fix the amount recoverable for the costs incurred by a person in the doing of any specified thing in any particular form of action or other proceeding. Thus, it is permissible to restrict costs where the restriction is imposed in respect of costs incurred "in the doing of any specified thing in any particular form of action". In other words, once there is specificity both in relation to the "thing" and to the form of action, then the rule is permissible. Any rule that seeks to come within the second exception must specify the context in which the rule applies i.e. the form of action, and for what "thing" i.e. an identified and distinct step.
- Turning to the Schedule, for ease of understanding, I reproduce below the extract from the applicable version.
2. Solicitors' costs in contract, breach of contract and tort proceedings and in claims for damages unconnected with contract |
Amount due at the date of issue of claim notice or, (as the case may be) the amount decreed for debt |
Costs if settled without necessity for appearance |
Costs of judgment (decree) if case not defended |
Costs of judgment (decree) if case defended (assessment of damages) |
Costs of judgment (decree/ dismiss) if case defended (liability) |
|
€ |
€ |
€ |
€ |
Not exceeding €3,000 |
300 |
500 |
650 |
750 |
Exceeding €3,000 and not exceeding €6,000 |
600 |
1,000 |
1,300 |
1,500 |
Exceeding €6,000 and not exceeding €9,000 |
900 |
1,500 |
1,950 |
2,250 |
Exceeding €9,000 and not exceeding €12,000 |
1,200 |
2,000 |
2,600 |
3,000 |
Exceeding €12,000 and not exceeding €15,000 |
1,500 |
2,500 |
3,250 |
3,750 |
The above scale of costs (2): —is in every instance exclusive of and in addition to all actual and necessary outlay; ... |
- It may be seen that the particular form of action is specified as follows: "contract, breach of contract and tort proceedings and in claims for damages unconnected with contract." The amount recoverable is dictated, not just by the form of action but by the level of damages recovered, with a commensurate increase in costs as the damages become higher. This case came somewhere in the middle of the scale, attracting an award for damages of €8,000, i.e. the €6,000 - €9,000 band, with recoverable costs of €2,250.
- Applying the words of s.17(4), the "specified thing" is "costs of judgment (decree/dismiss) if case defended (liability)". Therefore, a party is entitled to recover the cost incurred by them in obtaining a decree where the case is defended. In my view, this is the doing of a specified thing i.e. obtaining judgment. At the hearing, submissions were made by counsel for the appellant to the effect that the words "the doing of any specified thing in any particular form of action" had to be read as only including items that were one amongst a number of other items by reference to the words "in any ... form of action"; and that the Schedule was impermissible because identifying the judgment as the relevant thing meant that a number of steps were being rolled up into one item, and this could not be covered by the wording of the second proviso.
- However, I consider this approach is based on an incorrect interpretation of the second proviso: the second proviso has two elements, the doing of a specified thing and the doing of it in a particular form of action. In other words, the reference to "in" does not connote one thing amongst many, with the consequence that costs may only be fixed for each individual step, but rather is there to separate out the two conditions that must be met if rules of court are to be compatible with s.17(4). This interpretation is supported by the existence of the words "in any particular form". It is instructive to contrast the wording used with that found in the second and third sentences of s.17(4), which refers to the "amount of costs recoverable by any party from any other party in any action or other proceeding". No reference is made there to any "particular form" of action or other proceeding. On the other hand, the second proviso refers to the amount recoverable for the costs incurred in the "doing of any specified thing in any particular form of action or other proceeding". Those words must have an additional purpose in the second proviso: in my view, their purpose is to emphasise the distinct and separate nature of the second condition.
- As identified by the trial judge, the above interpretation of s.17(4) advances the overall purpose of s.17 i.e. to minimise the cost of litigation generally in particular for the parties, and to avoid unsuccessful defendants being burdened with the costs of defending a claim in the higher court when it could reasonably have been brought in the lower court. The essence of the appellant's claim is that he should have got Circuit Court costs for a case that should have been brought in the District Court - the antithesis of the differential costs orders that s.17 provides for. (It is worth adding that he has not adduced any evidence that had he obtained a decree at Circuit Court level, he would have been entitled to the sum he seeks i.e. €32,986.89).
- When adopting the equivalent of s.17(4) i.e. s.12(3) in the 1936 Act, the legislature must be taken to have been aware of the systems in the various jurisdictions, including the simplicity of the District Court system as commented upon Kennedy CJ in 1927, and the appropriateness of providing certainty in respect of the level of costs recoverable, as observed by the trial judge. Moreover, by fixing a scale of costs for a particular jurisdiction, the Rules Committee are ensuring proportionality between the amount of damages awarded and the costs incurred in obtaining that award. All those considerations lead me to conclude that the appellant is incorrect in his interpretation of the second proviso and that the terms of the Schedule as they apply to this case are compatible with s.17(4).
- In fact, in my view, the real challenge maintained by the appellant is not so much that the obtaining of a judgment cannot be the doing of any specified thing in any particular form of action, since it manifestly can; but rather that Order 53, Rule 2(1), which provides that the costs specified in each scale are the only lawful costs, is incompatible with the general rule in s.17(4) as it means that the appellant cannot recover the entirety of the costs he deems appropriate, including for example the cost of pre-trial consultations. He characterises this as an impermissible interference with his entitlement to recover costs under s.17(4). Similar arguments are made in respect of Order 53, Rule 13 which fixes counsel's fees at a particular level. There is also a challenge to Order 53, Rule 2(2) - the entitlement of the court in special circumstances to provide for costs in excess of the amount provided - but it is difficult to understand how the appellant can maintain this, given that this is an enabling rather than a limiting rule, and that no application was made under this Rule.
- I have already explained why I do not consider s.17(4) gives an entitlement to costs: but beyond that, one can see there is a real difficulty for the appellant in making the above argument. First, the appellant has not set out the individual steps in this case for which he contends he ought to have been remunerated but was not. He accepts that he was remunerated for two motions, for the costs of the engineer, for counsel's fees, and for solicitor's fees. He does not refer to the additional fees that he was entitled to seek but appears not to have, i.e. interim applications on notice to include all Notices of Motion (€500) and additional respondents separately represented (€500).
- Thus, the scale does indeed have fees for individual discrete items that could have been claimed but were not. In this respect, the evidence of the appellant is quite deficient because although he refers to the costs he ultimately obtained - €8,755.78– he does not break them down in any way. In those circumstances, he has failed to establish as a matter of fact that s.17(4), as applied in his case, restricts his solicitor to a professional fee of €2,250.
- In the same vein, to the extent that the appellant argued his solicitor was not remunerated for the work carried out, no consideration appears to have been given to the flexibility built into Order 53. As identified above, an application may be made for an item to be specially treated where special circumstances can be established. The onus is on the party seeking to establish special circumstances to put documentation before the court to support that application. There is no reference in the affidavit of the appellant to any attempt to identify special circumstances in this case. Similarly, there is no evidence of any attempt to invoke Order 53, Rule (5), which permits the Court to measure the costs where it is of the opinion there is no appropriate scale of costs, or Order 53, Rule 14(1)(e) which permits the Court to fix the costs if the application of the Schedule would be inappropriate or unjust. Accordingly, I do not consider the appellant can advance the argument he seeks to make in this respect, not having availed of the flexibility offered by the Rules in this respect.
- In summary, s.17(4) permits the fixing of rules limiting the recovery of costs to a certain amount in respect of a specified thing in the particular form of action. The Schedule does just that and is therefore not incompatible with s.17(4). Nor can the appellant contend the Rules and the Schedule taken together impermissibly limited the amount he could recover, since he has no entitlement under s.17(4) to costs, still less any particular level of costs, and because he had not availed of the possibility under the Rules and Schedule to apply for additional fees.
- For the reasons set out above, I uphold the decision of the trial judge insofar as he found the Schedule and Order 53, Rules 2(1) and (2), and Rule 13 to be compatible with s.17(4).
Section 141 of the 2015 Act
- Section 141 provides as follows: -
"(1) A County Registrar, on a taxation of costs, shall have regard to the principles relating to legal costs specified in Schedule 1".
- There is no equivalent provision applying to taxation of costs in the District Court. There is no equivalent to a County Registrar in the District Court: adjudications on costs are done by the District Court judges.
- Schedule 1 appears under the heading "Principles relating to Legal Costs" and identifies, inter alia: -
"1. A Legal Costs Adjudicator shall apply the following principles in adjudicating on a bill of costs pursuant to an application pursuant to section 154:
(a) that the costs have been reasonably incurred, and
(b) that the costs are reasonable in amount.
2. In determining whether the costs are reasonable in amount a Legal Costs Adjudicator shall consider each of the following matters, where applicable: ..."
55. There follow ten matters that should be considered where applicable, including matters such as the complexity and novelty of the issues involved in the legal work, skill or knowledge relevant, the labour, the urgency, the place in which the matter was transacted, and the complexity and number of the documents.
56. The appellant had made a simple argument; that s.141 required the County Registrar to apply the principles in the Schedule to an adjudication of costs and he had failed to do so. The trial judge notes that there was no evidence that, in allowing the fees as per the scale provided for in the District Court Rules, the County Registrar did not have regard to the matters set out in Schedule 1 to the 2015 Act and that in the absence of any evidence to the contrary, one had to assume that in carrying out the taxation, the County Registrar applied the correct criteria to his assessment of the reasonableness of the fees charged by solicitor and counsel for the applicant and came to the conclusion that such reasonable fees at least came to the maximum level for such fees, as recoverable under the scale in the District Court Rules. The trial judge notes that whether the County Registrar thought fees should be taxed at a higher level than provided for under the applicable scale in the District Court Rules was not known and was not stated in his ruling on the taxation.
Arguments of the parties
- The appellant argued that he had put evidence before the trial judge i.e. the affidavit of Mr. Burke referred to above, that demonstrated that the County Registrar did not have regard to the principles set out in Schedule 1 as follows. Because of the dispute in this regard, it is necessary to set out the relevant evidence in full.
"18. ...."I submitted to the County Registrar that the Applicant was entitled to recover all party and party costs itemised and claimed in the Bill of Costs. Mr. McMahon on behalf of Casey Cablevision Limited and Virgin Media Limited made a preliminary objection to the County Registrar to the effect that the order of Her Honour Judge Alice Doyle made on 15th December 2021 had ordered that the applicant shall recover the costs of the Circuit Court Proceedings from the Second and Third Notice Parties on the District Court Scale with a certificate for Counsel and that the County Registrar was bound by this and that the County Registrar was required to tax the applicant's party and party costs on the basis of the District Court scale of costs.
19. I say that the County Registrar agreed with the preliminary objection made on behalf of the Second and Third Notice Parties. The County Registrar ruled that he was required to tax the Applicant's party and party costs on the basis of the District Court Scale of Costs. The County Registrar ruled that the costs that the Applicant could recover in respect of the professional fees for solicitor and counsel were limited to the costs for solicitor and counsel specified in the District Court Scale of Costs. The County Registrar ruled that the costs that the Applicant could recover in respect of the professional fees for solicitor and counsel were limited to the costs for solicitor and counsel specified in the District Court Scale of Costs. The County Registrar said that his hands were tied and directed that the costs that the Applicant shall recover in respect of the professional fees for solicitor and counsel were the costs specified in the District Court scale of costs."
- The appellant argues that this evidence was not challenged or contradicted by the respondents, there being simply a plea denying that the County Registrar failed to comply with s. 141(1), but no positive case made that the County Registrar did in fact comply with or apply s. 141(1). The appellant contended that the trial judge erred in assuming in the absence of any evidence that there was compliance with s. 141(1) of Schedule 1.
- The appellant added that state parties are obliged to conduct public law litigation with the cards face up on the table as per the dicta of Lord Donaldson MR in R v Lancashire CC [1986] 2 AER 941 and that the failure of the respondents to put in any evidence in this respect constituted a failure to observe this principle.
- The respondents argued that the averments of Mr. Burke did not constitute evidence of a disregard or failure to consider Schedule 1 or have regard to the 2015 Act more generally. They rejected the contention that there was a lack of candour, pointing out that it is inappropriate and undesirable for those exercising judicial functions to intervene and take an active role in High Court judicial review proceedings to defend the validity of their decisions, or elaborate upon the reasons for same. They point out this was particularly so given the role of the County Registrar, and the nature of the decision in question, i.e. one that provides certainty and expedition of the taxation of costs in the Circuit Court and facilitates the efficient administration of justice.
- They argued that the burden remained on the litigant, and that the appellant had not discharged the burden of proof, observing that simply because the appellant had filed an affidavit, he cannot be treated as having so discharged the burden. Moreover, they point out that, had the County Registrar intervened, that would have put him to an unnecessary costs risk since if a judge (or presumably a quasi-judicial officer) insists on defending the validity of his or her decision even if acting in entirely good faith, they become a litigant and, in such circumstances, whatever immunity the judge enjoys will be lost, relying upon Kilty v Judge Dunne [2020] IESC 65.
- Separately, the respondents argued that s. 17(4) and s.141 are not mutually incompatible and that, where rules of court fix the amounts recoverable for costs and expenses, it neither relieves nor precludes the obligation on Country Registrars to have regard to the principles relating to legal costs specified in Schedule 1 to the 2015 Act, and that, despite Order 53 Rule 2(1) of the District Court Rules providing that the costs specified in each scale are the only lawful costs, a County Registrar is still obliged to satisfy himself or herself that the costs presented for taxation have been reasonably incurred and are reasonable in amount.
- I understand this last submission as amounting to an acceptance that the County Registrar was obliged to apply s. 141 in the circumstances of this case. That means that the only question that remains is whether the trial judge was right in concluding that it had not been established that the County Registrar did not apply it.
Analysis
- To determine this issue, it is necessary to consider the findings of the trial judge as to whether the County Registrar had discharged his obligations under s.141 during the adjudication. That is best characterised as a factual question made following a hearing on affidavit, although it concerns the County Registrar's discharge of his legal obligations. As such, I should apply the standard identified in the case of Ryanair v Billigfluege [2015] IESC 15, i.e. where an appellant argues for the reversal of any judgment founded on a rigorous analysis of affidavit evidence as to fact, he or she bears a heavy burden in seeking to demonstrate that a trial judge has fallen into such error that the decision made is untenable.
- The trial judge holds there was no evidence that the County Registrar did not apply the correct criteria to the assessment of fees, and that in the absence of evidence to the contrary, one must assume that in carrying out the taxation, the County Registrar applied the correct criteria to his assessment of the reasonableness of the fees. I cannot agree there was no evidence: Mr. Burke had sworn an affidavit averring that the County Registrar had not applied s.141. It is true that Mr. Burke's evidence was unsupported by any documentary evidence; he had not, for example, exhibited any note of the adjudication hearing. Nonetheless, it was sworn evidence, and it was not contradicted by any evidence from the respondents.
- I am mindful of the position of a judge or quasi-judicial officer when they are named as a respondent to a judicial review: for very good reasons, they will be very slow indeed to enter into the fray. But the respondents here include the Minister for Justice and the Attorney General, either or both of whom could have obtained and exhibited a copy of the digital audio recording (DAR) of the costs hearing before the County Registrar. Therefore, the difficulty of obtaining evidence is not as great as suggested. I should add that, contrary to the submissions of the appellant, this is not a case of a lack of candour, or cards not being put on the table by the respondents. The hearing the subject of challenge was one that Mr. Burke had attended himself. He was fully aware of what had transpired. Had the appellant wished to establish his proofs more robustly, he could equally have sought the DAR of the hearing and exhibited it. Nothing was inappropriately withheld by the respondents that could only have been accessed by them. The reliance on the line of case law in respect of a lack of candour is misplaced in those circumstances.
- Returning to the evidence available to this court, fortuitously for the appellant, there is other evidence available that supports Mr. Burke's averment, being the Determination of the County Registrar himself. The reasons for same are in the following terms:
"The reasons for the outcome, as determined by the County Registrar: the costs recoverable are in accordance with the scales specified in the District Court schedule of costs currently in force, the provisions of section 17 of the Courts Act 1981, Order 66 Rule 11 of the CCR and Order 53 Rule 2 of the District Court (Civil Procedure) Rules 2014." (Order 66, Rule 11 provides for differential costs orders to be made where an award is within the jurisdiction of the District Court).
- In my view, the reasons given makes it quite clear that the costs were awarded in accordance with the scale. Given the County Registrar's careful reference to the applicable legislation and Rules, I have no doubt that he would have identified s.141 had he considered same. Moreover, the amounts that the County Registrar awards according to Mr. Burke's affidavit are clearly derived from the District Court scale i.e. €2,250 for the solicitor's instruction fee, and €800 for counsel, strongly suggesting that he applied the District Court scale. I am therefore satisfied that the trial judge's conclusion should be set aside and that I must conclude that the Country Registrar did not apply s. 141.
- The affidavit of Mr. Burke is important in another respect. In the description of his application to the County Registrar, and the decision made on same, he makes no reference to any reliance on, or invocation of, s. 141. Nor, as identified above, does the Order of the County Registrar make any reference to s. 141. In those circumstances, I am satisfied that no application was made to the County Registrar under s.141. This is significant in relation to my discretion to grant judicial review, as discussed below.
- Turning now to the substantive argument that the County Registrar was obliged to consider the terms of s. 141, I consider it is unanswerable. Section 141 is unambiguous in its terms. The County Registrar was obliged to have regard to the principles specified in Schedule 1 of the 2015 Act. There is no exception to its application, even where a differential costs order means that the County Registrar is adjudicating on costs at a District Court level. The effect of s. 141 in those circumstances is that where a differential costs order has been made requiring costs at District Court level, the method of measurement of those costs by the County Registrar differs from the way in which they would be measured had the case been brought in the appropriate court.
- That is not to say s. 141 is necessarily incompatible with costs on the District Court scale. Had s. 141 been brought to the attention of the County Registrar, it is quite possible that he could have applied it in a manner compatible with the District Court scale, because there is considerable flexibility in Order 53 and the District Court scale. Order 53 Rule 2(2) provides that the Court may, in special circumstances, award an amount for costs and/or counsel's fees in excess of the amount provided in the Schedule of Costs. Order 53 Rule 3(1) provides that where a party intends to apply for costs otherwise than in accordance with the Schedule of Costs, that party must provide documentation establishing the special circumstances in the case which
to support such an application. Order 53, Rule 14(1)(e) provides that where the Court considers that rules applying a particular scale of costs would be inappropriate or unjust, the Court may fix the costs. However, it is inappropriate to further consider the precise contours of that interpretation exercise, as no submission was made to the County Registrar that s.141 applied and it was not applied. - I should add that not every differential costs order made in the Circuit Court will necessitate the application of s.141. A Circuit Court judge making a differential costs order directing District Court costs on the scale may not need to send the matter to the County Registrar for adjudication if the costs are entirely covered by the scale.
- Returning to the Order of the County Registrar, I must conclude that the Order is not valid as the County Registrar did not apply s.141 and the principles in Schedule 1.
- Normally, where a person establishes a breach of the law in the making of an order in the context of a judicial review proceedings, the impugned order will be quashed. However, the reliefs available in judicial review are discretionary in nature. In State (Abenglen Properties Ltd) v. Dublin Corporation [1984] IR 381, the Supreme Court dismissed a claim of certiorari where an applicant's conduct had disentitled him to relief. In De Róiste v. Minister for Defence [2001] 1 IR 190, the court identified the conduct of the applicant as a factor that might influence the grant or withholding of relief where an illegality has been established.
75. In John O'Connell v The Taxing Master [2021] IECA 186, Murray J. upheld the trial judge's refusal to grant leave for judicial review made in the context of taxation of costs proceedings and, in respect of the discretion to refuse relief, observed as follows at paragraph 43:
"Clearly, while judicial review is a discretionary remedy the court is not at large in withholding such relief where the legal basis for it has otherwise been established. The discretionary factors by reference to which judicial review has been refused have tended to fall into three broad groups - grounds relating to the action or inaction of the claimant (such as a failure to exhaust an alternative remedy, delay, laches, waiver, acquiescence or misconduct in connection with the proceedings), grounds relating to the impact a remedy will have on others (such as where the grant of relief would represent an unwarranted interference with the settled rights or expectations of third parties) and grounds relating to the practical value of the remedy (such as mootness or futility) ..."
- Having regard to the facts of this case, I have considered whether this a case where, in the exercise of my discretion, at appeal stage, I should refuse relief. It is a clearly a case that falls into the first category identified by Murray J. i.e. grounds relating to the action of the appellant. The potential basis for refusing relief is that no argument was made to the County Registrar that s. 141 applied, thus necessitating the application of the principles in Schedule 1 when adjudicating on costs. In contexts quite different to the instant one, there is a considerable body of case law suggesting that parties should not be asked to defend proceedings on a point that could have, but was not, brought to their attention at the time the relevant decision was made. In Lancefort Ltd v An Bord Pleanála (No.2) [1998] IESC 14, the Supreme Court ruled that grounds not pleaded before the decision-maker could not be then raised during a judicial review. More recently, in Thomas Reid v an Bord Pleanála [2021] IEHC 230, Humphreys J. noted:
"An applicant who seeks a decision for her own benefit must put forward the grounds being relied on to the decision-maker. If the decision is adverse, the applicant can't be allowed to challenge the decision for failure to consider something that was never put forward."
- Here, the argument about the application of s.141 appears to have been raised for the first time in the leave application, thus depriving the County Registrar of an opportunity to hear the parties on the application of s.141 and decide on same.
- Nonetheless, because the obligation on the County Registrar pursuant to s. 141 is so clear and the nature of the breach is so absolute, I think it inappropriate to refuse relief. Section 141 does not admit of any exception to its application. If I were to refuse relief on the discretionary grounds identified above, it would result in the disapplication of a statutory provision. One of the most obvious and important tasks of courts is to apply legislation. Only in a very narrow range of circumstances would it be appropriate to disapply a legislative provision in the exercise of the discretion to refuse relief, if indeed that is a permissible exercise of the court's discretion at all. This does not appear to me to be such a case.
- I will therefore quash the decision of the County Registrar and remit the matter back to him to determine in accordance with law. However, the failure of the appellant to argue that s.141 was applicable may be relevant to the question of the costs of these proceedings, and the parties will have an opportunity to be heard in this respect.
Right of Access to the Courts
- One of the grounds of appeal is that the trial judge erred in failing to hold that the Rules undermined the appellant's access to the court. Little time was spent on this at the hearing or in the written submissions. The trial judge described the argument as being that the size of the shortfall between what was charged in the bill of costs and the amount recoverable constituted an infringement of the appellant's right of access to the courts. However, the trial judge held that this had not been established in evidence, because the County Registrar did not state that the bill of costs furnished in the sum of €32,986.89 was reasonable in terms of the work done and therefore one could not say there was a shortfall of €24,231.11 in respect of fees reasonably incurred, even if the action had been commenced in the District Court. In the circumstances, he held that the appellant had not established there has been any infringement of his right of access to the courts.
- I agree with the trial judge's conclusion and the reasons for same. The appellant has put forward no evidence to suggest his right of access has been interfered with. He clearly exercised his right of access to the court and obtained a decree of damages. If his argument is that the District Court scale has a chilling effect and will undermine his access to the court in future, that argument should have been made but was not. Simply showing that there is discrepancy between the amount he was awarded and the bill of costs that he submitted cannot amount to an assertion of denial of access to the courts.
- Moreover, as set out above, there is no evidence that he sought any additional discrete fees he might have been entitled to under the scale or made an argument for special circumstances. There is no recognition by his solicitor of the fact that the bill of costs was prepared as if this was a Circuit Court case, and did not make any allowance for the fact that an order had already been made by the Circuit Judge allowing costs on the District Court scale. In short, there are gaping legal and evidential deficits in his contention he has been denied access to the court, and I reject his appeal on this ground.
Are Order 53 DCR and the Schedule ultra vires the rule-making power of the District Court Rules Committee?
83. The final argument raised by the appellant is that Order 53 and the Schedule are ultra vires the power of the Rules Committee to make rules for the District Court under s. 91 of the Courts of Justice Act 1924 (the "1924 Act"). As noted above, while this argument was dealt with extensively in the written submissions of the appellant, little time was given to it by counsel at the hearing. In the High Court, this issue was dealt with in summary fashion by the trial judge, who found that s. 91 gave the District Court Rules Committee the power to make rules for the practices and procedures to be adopted in the District Court, including the power to make rules in relation to recoverable costs, and held that the District Court Rules Committee have jurisdiction to make rules governing the recovery of costs in actions heard in the District Court.
84. Section 91 of the 1924 Act, as applied by s. 48 of the Courts (Supplemental Provisions) Act 1961 (the "1961 Act"), continued the power of the Rules Committee to make rules for the District Court. Section 34 of the 1961 Act provided for the exercise of the jurisdiction transferred from the District Court established under the 1924 Act to the new District Court established under the 1961 Act, providing as follows:
"The jurisdiction which is by virtue of this Act vested in or exercisable by the District Court shall be exercised as regards pleading, practice and procedure generally, including liability to costs, in the manner provided by rules of court made under section 91 of the Act of 1924, as applied by section 48 of this Act."
85. Section 72 of the Courts of Justice Act 1936 provides:
"Subject and without prejudice to the provisions of this Act in regard to the fees chargeable in court offices, the rule-making authority for the purposes of section 91 of the Principal Act shall be the District Court Rules Committee with the concurrence of the Minister for Justice."
86. Section 91 of the 1924 Act is in the following terms:
"Such rule-making authority may ... make rules to be styled "District Court Rules" for carrying into effect this Part of this Act .... In particular rules may be made for all or any of the following matters, viz., .... and the practice and procedure of the District Court generally including questions of costs and the times for taking any step in the District Court, the entering-up of judgment and granting of summary judgment in appropriate cases and the use of the national language of Saorstát Eireann therein ...."
87. The scope and limits of the rule making power under s. 91 of the 1924 Act were extensively considered recently by the Supreme Court in DPP v. McGrath [2021] 3 IR 785 and DPP (Varley) v. Davitt [2023] IESC 17.
88. The appellant argued that the impugned Rules and Schedule are not matters concerning the practice and procedure of the District Court generally and nor do they relate to practice and procedure in respect of questions of costs within the meaning of s.91. He contended that the reference to questions of costs is a reference to costs in a particular context i.e. the practice and procedure of the District Court. In contrast, he said that the Rules and Schedule are substantive provisions capping the amount recoverable, that they affect vested rights and the administration of justice. He referred to the reference by Charleton J. in Sweetman v. Shell [2016] 1 IR 742 that liability as to costs was more than merely procedural and substantive rules as to costs were more in the nature of vested rights.
89. He acknowledged that in McGrath, O'Donnell J. held that Sweetman is not to be understood as determining that the jurisdiction in respect of costs is substantive and not procedural or as suggesting that costs could not properly be considered as being within matters of practice and procedure, while acknowledging a decision on costs is part of the administration of justice. He referred to the dicta of O'Donnell J. that a rule which came within the scope of permissible delegation under the statute could be impugned as an impermissible interference with the administration of justice. The appellant referred to Finlay Geoghegan J. in M O'S v The Residential Institutions Redress Board [2018] IESC 61 where she observed that a Rule could not modify a power existing under common law or one which forms part of the inherent jurisdiction in the courts in the administration of justice.
90. The appellant argued that because the Rules impose a cap irrespective of the facts, circumstances and outcome, they prevent a person reflecting the costs reasonably incurred, and therefore interfere with the administration of justice and the right of access to the court and are therefore ultra vires the rule making power under s. 91.
Analysis
91. I have already held above the appellant has not established any infirmity in the trial judge's finding that his right of access to the courts was not infringed and this claim cannot be recycled in the context of an argument as to the vires of the District Court Rules committee.
92. As pointed out by the respondents, factually, the appellant is wrong: the Rules do not impose an absolute cap. As observed above, the Rules permit exceptions to the sums identified in the Schedule for special circumstances - see Order 53, Rules 2(2) and 2(5). Order 53, Rule 14(1)(e) provides that if the application of the Schedule would be inappropriate or unjust, the Court may fix the costs. However, the appellant chose not to rely on any of those provisions and therefore cannot complain about their application in practice. Moreover, Order 66, Rule 11 provides for differential costs orders in the Circuit Court, providing that where the relief granted could have been obtained in the District Court, the costs to be allowable are those which would have been recoverable in that Court with the addition of such actual and necessary outlay as may be allowed. Order 66, Rule 13 permits the Circuit Court judge with special cause to order that the costs be taxed on a scale higher than that otherwise applicable. However, just as was the case before the County Registrar, there was no attempt by the appellant to avail himself of this exception. Further, the appellant has not even attempted to demonstrate that he has an entitlement to all costs "reasonably and necessarily incurred" that he argues has been interfered with by the Rules.
93. I now turn to the appellant's argument that the Rules and Schedule are substantive rather than procedural provisions. He does not engage with the wording of s.91 of the 1924 Act that explicitly characterises costs as practice and procedure in the context of the powers of the Rules Committee of the District Court. Furthermore, the reference to the phrase "vested rights" in the decision of Charleton J. in Sweetman must be properly read with the following qualifications: first, he himself observes that "at the least they are properly beyond neutral consideration"; second, that case concerned liability as to costs as opposed to quantum; and third, O'Donnell J. in his judgment in McGrath made it clear that the statement is not to be regarded as taking costs out of the realm of practice and procedure. The appellant provides no authority for the proposition that he has a substantive right to his costs that he unilaterally deems reasonably and necessarily incurred.
94. In my view, the Rules and Schedule impugned by the appellant fall squarely within s. 91 and s. 34. Imposing a cap on the amount of costs recoverable and specifying those amounts subject to exceptions are rules on costs. Section 91 characterises rules on costs as practice and procedure and gives the function of adopting same to the Rules Committee, entirely appropriately given the nature of such rules. The Rules and the Schedule do not contain abstract policy decisions: rather they are granular in nature, detailing the level at which costs are to be awarded variously by reference to the item of work, the value of the award, the nature of the case, the identity of the person who carried out the work and so on, with a requirement for revision every three years. In my view, the Rules and Schedule address precisely the type of matters that are suitable to be dealt with by a Rules committee. Far from being in breach of the administration of justice, they are an important part of the administration of justice in the District Court.
95. The appellant invoked the decision in McGrath, where the Supreme Court held that a provision of the District Court Rules preventing the recovery of costs by litigants who successfully defend a prosecution brought by the DPP or a member of An Garda Siochana could not be considered a rule as to practice and procedure and instead involved a broad ranging policy decision that lay within the function of the Oireachtas under Article 15.1.2 of the Constitution, requiring as it did democratic justification rather than technocratic expertise. He argued that capping or limiting the quantum of recoverable or allowable costs is a significant policy question beyond the scope of the delegated powers of the Rules Committee.
96. But the appellant has not explained why the current rules reflect an impermissible policy decision. The setting of scale fees relates to the method of measurement of costs rather than an entitlement to costs - or rather a complete prohibition on recovering costs irrespective of the circumstances, as was the position in McGrath. Those two situations are not comparable. Moreover, as the respondents note, the Rules reflect the policy decision made under s.17(4) of the 1981 Act that rules may be made limiting the amount of costs in certain situations, although the Rules were not made pursuant to s.17(4).
97. Separately the appellant argues the Rules conflict with the 2015 Act. That argument was not contained in the Statement of Grounds and cannot be introduced at this point in the proceedings.
98. For those reasons, I uphold the decision of the trial judge that s.91 is intra vires the Rules Committee and reject the appellant's appeal in this regard.
Conclusion
99. For the reasons set out in this judgment, the appeal is allowed in part to the extent that the Determination of the County Registrar of 23 January 2023 will be quashed and remitted back to the County Registrar. The appeal is rejected insofar as all other reliefs sought are concerned and the decision of the trial judge upheld in that respect.
100. In so far as costs are concerned, the parties are entitled to make submissions on the appropriate order. The appellant is entitled to file and serve short written submissions of not more than 2,000 words within 14 days from the date of delivery of this judgment, after which the respondents will have a further 14 days in which to file and serve replying submissions of the same length.
101. Since this judgment is delivered electronically, I am authorised by Faherty and Meenan JJ. to state that they agree with it and with the orders proposed above.
Result: Appeal partly allowed.