Clarification at Last! Costs Update- “Special Circumstances” and Order 53 Rule 2 (2) of the District Court Rules

Emma Murphy from our Dispute Resolution team discusses a recent High Court on Circuit case we acted in and successfully appealed against Order 53 Rule 2 (2) of the District Court Rules.

Teresa Field v Cork City Council

A recent decision from Justice Miriam O’Regan in an Appeal from the Circuit Court to the High Court on Circuit in Cork has provided helpful guidance on the award of District Court costs in Circuit Court proceedings, more particularly the application for Order 53 Rule 2 (2) of the District Court Rules.

RDJ LLP was instructed on behalf of the Defendant.

This Appeal was brought by the Defendant, Cork City Council specifically in relation to one element of the Costs Order granted by the Circuit Court following the hearing on 25 January 2022. The Defendant entered the Appeal specifically in relation to the part of the Court Order permitting Order 53 Rule 2(2) of the District Court Rules.

What is Order 53 Rule 2 (2) of the District Court Rules?

Order 53, Rule 2(2) of the District Court Rules provides that:

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.”

Circuit Court Proceedings

By way of background to the Circuit Court proceedings, the Plaintiff pleaded that on the 22^nd July 2019 she was caused to trip and fall on a lip on a footpath and suffered injuries that were soft tissue in nature. This was a Book of Quantum case.

A full defence including a plea of non-feasance and contributory negligence was entered by the Defendant. The plea of non-feasance was subsequently withdrawn four weeks after the Defence was entered. There was one request for discovery in the matter, a request from the Plaintiff to the Defendant and one subsequent motion brought by the Plaintiff in relation to this discovery request.

With regards to injuries sustained, the Plaintiff had two medical reports and the Defendant had one. The Plaintiff made quite a good recovery so medical evidence was not complicated and the medical reports were agreed in advance of the hearing.

On the day of the hearing the matter essentially ran as an assessment and the Judge found in favour of the Plaintiff and awarded her €10,000 for general damages taking into account contributory negligence. In addition, €400 was allowed for special damages.

Given the award made, the Judge made an Order for District Court costs to the Plaintiff. Counsel for the Plaintiff then made an application for Order 53 Rule 2 (2) of the District Court Rules. With regards to the special circumstances of the case he pointed out that the case proceeded as an assessment, but they were not aware of this until the morning of the hearing. Counsel for the Plaintiff also pointed out that the schedule of costs in the District Court Rules had been introduced in 2014 and in all of the circumstances were simply too low. Our Counsel objected to this and advised that we would agree to a Certificate for Counsel and an engineer but there was no justification for Order 53 Rule 2 (2) to be invoked.

Ultimately, the Order made by the Court was:

“That the Plaintiff do recover from the Defendant the sum of €10,400 (inclusive of specials) together with District Court costs to include a Certificate for Counsel and Engineer pursuant to Order 53 Rule 2.2 of the District Court Rules to be taxed in default of agreement”

The Appeal

The Defendant entered the Appeal specifically in relation to the part of the Court Order permitting Order 53 Rule 2(2) of the District Court Rules.

The Appeal was first listed in the October High Court on Circuit Sessions in Cork, but it was adjourned until the January 2023 sessions to facilitate both sides to provide written legal submissions and for oral evidence to be given.

The Appeal was heard on the 23rd and 24th January 2023. It was the Defendant/Appellant’s case that this was not a case in which Order 53, Rule 2(2) should have been invoked as there were no special circumstances in the case.

Counsel for the Plaintiff/Respondent argued that the “special circumstances” of the case which would allow the Judge to make an order pursuant to Order 53, Rule 2(2) were that:

• The case had been fully defended until the morning of the trial, but ultimately the Defendant indicated that the case could proceed as an assessment, and

• The scale of fees in the District Court had not been updated since 2014 and were simply too low. Reference was made to Order 53 Rule 2 (4) which states “the Schedule of Costs must be revised no less frequently than once every three years.”

Justice O’Regan delivered Judgment on 25 January and found in favour of the Defendants/Appellant. She found that there were no special circumstances in this case to justify invoking Order 53 Rule 2 (2) of the District Court Rules; that the failure to revise the Schedule of Costs as required by the Rules was not a special circumstance. She stated that the issue of the scale being potentially unlawful was not for her to consider. She accepted the evidence of the Defendant/Appellant that parties were still widely relying on the Schedule of Costs in place since 2014.

She also stated that a change in the stance on liability in a trip and fall case was not out of the ordinary and therefore not a “special circumstance”.

She also stated that Circuit Court Judge has no discretion to allow for adjudication or taxation of costs by the County Registrar where a District Court award is granted.

Ultimately, the Judge directed that the Circuit Court Order be amended to remove the reference to Order 53 Rule 2 (2) of the District Court Rules and the Plaintiff’s costs were limited to the Schedule of Costs in the District Court Rules.

Comment

The finding of the Court is of most significance to all Defendants who find themselves at a Circuit Court hearing where an award of District Court Costs is made. It means that a Plaintiff who achieves an award in the District Court jurisdiction can only get costs in line with the Schedule of Costs in the District Court Rules. It is still open to a Judge to grant an Order pursuant to Order 53 Rule 2 (2), but if they do they must specify the “Special Circumstances” in the Order and measure the amount above the scale to be allowed to the solicitor.

It is significant that in an ordinary trip and fall case a High Court Judge has found that there were no special circumstances.