When can costs be measured by the High Court

By Jennifer Noctor
18 October, 2019

Jennifer Noctor examines a recent High Court case where the defendants took a costs order against a litigious plaintiff a step further by requesting the court to measure the costs to avoid the delay of the Taxing Master process.

Last week, the High Court (Mr Justice Garrett Simons) determined that it was appropriate to measure costs against a Plaintiff, rather than leave the matter be determined by the taxing master. The Plaintiff (who represented herself in the proceedings), brought claims against a number of Defendants seeking to criticise them for what she alleged was their part in securing an interlocutory order in the administration of her late sister’s estate in July 2012, which had been the subject of separate litigation.

The Defendants successfully brought an application to have the proceedings against them struck out on the basis that the claim represented an abuse of process, was frivolous and vexatious and disclosed no cause of action. Furthermore, some of the Defendants also made successful applications to obtain an Isaac Wunder order restraining the Plaintiff from issuing further proceedings against them without the leave of court. Following this decision, the defendants applied to the Court to have the costs measured pursuant to Order 99, rule 5 of the Rules of the Superior Courts.

Where does liability for costs fall?

In general, costs will follow the event at the conclusion of a case pursuant to Order 99, Rule 1 of the Rules of the Superior Courts (as amended). This is subject to the courts discretion to make an alternative order in respect of the costs. The Court acknowledged the recent Supreme Court decision of Godsil v Ireland [2015] IESC 103 wherein it was noted that costs following the event represents the starting point in any application such as this. Any departure from this position should only be done on a reasoned basis setting out the relevant factors to justify such a departure.

The Court noted that the “event” in this case was decided in favour of the Defendants in that the proceedings were struck out. The applications for Isaac Wunder orders were also granted. The Court noted that the purpose of its jurisdiction to make costs orders is to dissuade litigation which represents an abuse of process. The court stated that:

“In all of the circumstances, the making of a costs order against [1] Ms Rippington is necessary in order to protect the integrity of the court process and to ensure a just result for the defendants. No one is entitled to engage in an abuse of process on this scale with impunity.”

Should costs be measured or taxed?

The Court acknowledged that the general practice is that the court determines who bears the costs and the assessment as to the level of costs is left to the Taxing Master of the High Court. However, Order 99, Rule 5 provides that the court has jurisdiction to “measure” the costs, which means it may direct a sum in gross to be paid as an alternative to taxation. The court noted the judgement of Kearns P. in Taffe v McMahon [2011] IEHC 408 in which it was held that measuring costs would be appropriate in “simple and straightforward cases”. The court held that this was an appropriate case to measure costs - it was “straightforward”; it involved a number of short procedural applications for case management purposes only; and the substantive hearing was completed within a single day and disposed of on the basis of an application heard on affidavit.

How should the costs be measured?

The Defendants submitted estimates of their costs for the Courts consideration. Interestingly, the Court made significant deductions to the professional fee figures on the basis that the deponents of the affidavits (the defendants) were all lawyers. In this regard, the Court was of the view that the case would have been less onerous on the “external lawyers”. The Court measured costs in gross in the sum of €6,750 for each of the Defendants plus a further sum of €500 (excluding VAT) to cover outlay for each of the firms.

The Court referred to the relentless campaign of litigation by the plaintiff and therefore “all aspects of same should accordingly be brought to a conclusion without any unnecessary further delay or expense”. Any order directing the costs to taxation would only prolong the matter without “any obvious benefit”.

Key Takeaways

• Parties should be aware that the Court has jurisdiction to measure costs in certain “straightforward” cases. It is a much faster method than a protracted process to the Taxing Master.
• The “measured” costs in this case were significantly reduced from the initial estimates submitted to the court and what was estimated would tax by the legal costs accountants who submitted estimates on behalf of the defendants. The fees were reduced from €15,000 instruction fee to €3,000
• The Court acknowledged that the reduced fee was due to the procedural nature of the applications, that there was no complex factual background and the deponents were all qualified lawyers which may not be the case in alternative proceedings.
• RDJ acted for one of the Defendants

[1] Majella Rippington v Ireland and The Attorney General, Principal Probate Registry, the Law Society of Ireland, Murray Flynn Maguire Solicitors, Sighle Duffy, Anne Stephenson (practising under the style and Title of Stephenson Solicitors), Peter Maguire, Dominic Hussey and Rita Considine, High Court Record Number 2018/4803P.