High Court of Ireland Decisions

APPROVED

AN ARD-CHÚIRT

THE HIGH COURT

[2025] IEHC 150

Record No. 2024/943JR

BETWEEN:

H.J. WARD LLP

APPLICANT

AND

 

CHIEF LEGAL COSTS ADJUDICATOR

RESPONDENT

AND

 

HANNAH SIEWERT

NOTICE PARTY

JUDGMENT of Mr. Justice Conleth Bradley delivered on the 4^th day of March 2025

Introduction

 

Preliminary

 

1.      The applicant, a well-known firm of solicitors, seek various reliefs by way of judicial review in relation to the decision of the (then) Chief Legal Costs Adjudicator ("the respondent") dated 29^th April 2024, refusing the applicant's application for the 'consideration' of the determination in the adjudication of costs as between it and the notice party, pursuant to section 160 of the Legal Services Regulation Act 2015 ("the 2015 Act"), in a personal injuries action entitled Hannah Siewert v John O'Melia (bearing adjudication reference number H:LCA:OCAA2019:000423).

2.      The consideration application was made on 19^th July 2022 in relation to the respondent's earlier determination dated 14^th February 2020 (the application for consideration of the determination dated 6^th July 2022 was not pursued).

3.      On 11^th November 2024, the High Court (Simons J.) granted the applicant leave to apply for judicial review.

 

4.      Mr. Robert Barron SC and Ms. Deirdre Byrne BL appeared on behalf of the applicant.

 

5.      The respondent is adopting a neutral position as to the outcome of the applicant's application. Neither the respondent nor the notice party participated in the application for judicial review.

 

Background

 

6.      The notice party was a plaintiff in a personal injuries claim after being knocked down on 19^th  January 2014 when crossing Treepark Road in Tallaght, County Dublin.

7.      The applicant was first instructed by the notice party in September 2014 and their retainer continued for five years until it was terminated by the notice party on 14^th August 2019 when it received a notice of change of solicitor. The personal injuries claim, at that time, had been assigned a hearing date of 22^nd October 2019.

 

8.      Consequent upon the termination of the applicant's retainer by the notice party, a solicitor/client bill of costs was prepared by Lowes Legal Costs Accountants, and on or about 28^th August 2019 this bill was delivered to the notice party. The notice party's new solicitors informed the applicant that the notice party wished to have the bill of costs taxed, and Behan & Associates Legal Costs Accountants were instructed.

 

9.      On or about 15^th October 2019, the High Court (Cross J.) ordered the notice party's solicitors to discharge the costs of the applicant and that such costs were to be taxed [1] in default of agreement.

 

10.  The central dispute in this application for judicial review centres on when the statutory time limit of 14 days prescribed in section 160(1) of the 2015 Act for the consideration (made on 19^th July 2022) of an earlier decision (14^th February 2020) of the respondent commences and in so deciding whether the adjudication on the question of costs includes the costs incurred of the adjudication itself.

 

11.  As acknowledged in the 'determination' of the respondent dated 29^th April 2024 (at paragraph 6), the background to this matter is "somewhat convoluted".

 

12.  The focus of this challenge by way of judicial review is, however, limited to a discrete question of statutory interpretation which led the respondent to conclude that the applicant was 'out of time' in respect of its application on 19^th July 2022 seeking the consideration by the respondent pursuant to section 160 of the 2015 Act of his earlier 'determination' issued on 14^th February 2020.

13.  By way of summary, a process of adjudication of the applicant's Bill of Costs was heard by the then Chief Legal Costs Adjudicator in the period between December 2019 and July 2024, during which time a variation of oral and written decisions were made on a number of issues including, inter alia, the following matters.

 

14.  During the course of the hearing on 9^th December 2019, for example, the respondent communicated his views regarding a number of items in the Bill of Costs and expressly reserved his 'decision' on four items, namely (item 344) the solicitor's general instruction fee, (item 337) senior counsel's brief fee and VAT, (item 341) junior counsel's brief fee and VAT and other attendances, and (item 345) postages and sundries and VAT.

 

15.  The respondent conducted an adjudication on the revised claim and furnished a written determination on 14^th February 2020. It is this 'determination' which led to the seeking of the consideration on 19^th July 2022 pursuant to section 160 of the 2015 Act and which provides the context for the central question on this judicial review application as to whether or not the applicant was out of time having regard to the provisions of section 160 of the 2015 Act.

 

16.  The determination dated 4^th February 2020 was entitled "DETERMINATION ON LEGAL COSTS, HANNAH SIEWART TO H.J WARD AND COMPANY, SOLICITORS." At paragraph 6 of the determination, the respondent stated that three issues arose for his determination: "[t]he solicitor's general instructions fee, the issue of the brief fee for counsel and a claim for postages and other sundry outlay".

 

17.  The determination then addressed the 'Background and Context' from paragraphs 10 to 25, 'Damages' at paragraphs 26 and 27, the 'Brief Fees' at paragraphs 28 to 32, the 'Solicitor's Instructions Fee' at paragraphs 33 to 35 and 'Postages' at paragraph 36.

18.  At paragraph 37 of his determination dated 14^th February 2020, the respondent stated:

 

"That concludes this determination."

 

19.  Mr. Niall Ward Solicitor (and partner in the applicant) at paragraph 9 of his affidavit sworn on 23^rd July 2024 grounding this application for judicial review, inter alia states that on 14^th February 2020, the parties attended before the respondent to confirm his allowances and to have other items in the bill of costs adjudicated upon and that the adjudication was adjourned to 21^st February 2020 in respect of items of outlay and the adjudication of same.

20.   At paragraph 17 of his 'determination' dated 29^th April 2024, the respondent stated that "[t]he matter was adjourned to 21^st February 2020, to allow the Bill of Costs to be marked up with the allowances and the disallowances, in accordance with established practice, and to mark up the Bill of Costs as is required by [Order] 99, r.20 [of the Rules of the Superior Courts] so that the outcome of the Adjudication is recorded on the original Bill of Costs, so as to enable the Certificate of Determination to issue." 

21.  The respondent expressed a similar view (at paragraph 137) that the matter was adjourned to the 21^st February 2020 solely to give effect to the written determination, noting that his practice was to do so in order to allow the parties "to consider the terms of the Determination, circulate it, and take instructions. There are good reasons for this. First, the time lodging a Consideration mandated by s.160 is short, being 14 days. Second, there is no power vested in a Legal Costs Adjudicator to extend the time to allow a party to file a Consideration. Third, it is to endorse the Bill of Costs in accordance with Order 99 r 20 of the Rules of the Superior Courts (Costs) 2019...The notation of the allowances is required in any event, as it is the record of the Adjudication outcome".

 

22.  These and other differences of emphasis and perspectives between the parties exemplify the involved (if somewhat "convoluted") background and context to this matter which, due to the intervention of the Covid-19 pandemic and other reasons, understandably continued over a prolonged period between December 2019 to July 2024. While this is unfortunate, it is not necessary for me, on this application, to resolve any differences between the parties other than the principle issue of statutory interpretation. That said, it must be borne in mind that no Statement of Opposition or Notice of Opposition, or associated verifying affidavits, have been filed by the respondent and notice party taking issue with the applicant's Statement of Grounds date stamped on 23^rd July 2024 and the verifying affidavits of Mr. Ward sworn on 23^rd July 2024 and 21^st October 2024.

23.  Mr. Ward states that at the resumed hearing on 21^st February 2020 an issue arose as to whether the provisions of section 158 of the 2015 Act applied to the Bill of Costs as it had been prepared under the former system of costs. Arising from the Covid-19 pandemic, the adjudication was adjourned from time to time over the course of 2020 and 2021 and resumed on 4^th February 2022.

 

24.  After hearing submissions on 'the section 158 issue' on 4^th February 2022, the respondent reserved the matter and on 6^th July 2022, he delivered a written determination entitled 'DETERMINATION - COSTS OF ADJUDICATION'.

 

25.  Insofar as section 158 of the 2015 Act is concerned, the respondent inter alia determined the percentage reduction of the aggregate amounts of the charge to be paid by the notice party as 16.62% and that the applicant was responsible for the costs of the adjudication.

 

26.  In this comprehensive determination, the respondent had, in setting out the submissions of the parties, explained the previous regime from that which now existed under the 2015 Act. For example, at paragraph 54 he refers to an extract from the concluding submissions then relied upon on behalf of the applicant:

 

"(54) The Solicitors submit that there is no doubt that the 2015 Act constitutes a significant reform of the system of assessment of legal costs in a number of respects. Of particular concern in the present case is the 1/6^th Rule. The 2015 Act has repealed the previous enactment, being the 1849 Act, which provided for the 1/6^th rule to operate, as against the client, where the bill was not reduced by 1/6^th and as against the solicitor, should the bill be reduced by 1/6^th. Citing O'Callaghan in The Law of Solicitors in Ireland, a penalty of costs is incurred, depending on the amount of the reduction. One-sixth equates to 16.67%. Under [section] 158 of the 2015 Act, the rule is replaced by a less than 15% rule".

 

27.  The respondent, from paragraph (89) to the conclusion at paragraph (94) of the determination dated 6^th July 2022, contextualises the immediate background to the central issue raised in this judicial review application as follows:

 

"(89) In the course of submissions advanced on behalf of the client, the deductions are specified as being a figure of €13,925.23 and the net outcome of the Adjudication is specified as being €69,547.74.

(90) This does not appear to be correct, as it includes elements of the Costs of the Adjudication, which have not at the present time been concluded in the Clients favour or indeed at all. To conclude otherwise, would be to prejudge the very issue now under consideration.

(91) To be clear about it, in fact, the deductions amount to a figure of €13,925.24 leaving a net figure of €69,869.08 (as opposed to the clients suggested figure of €69,547.74).

(92) It would also follow, that if the net amount due is €69,869.08, the deductions expressed as a percentage, amounts to 16.62%, so the 15% threshold is exceeded.

(93) If the 1/6^th Rule is applicable, the threshold for this has not been reached, as 1/6^th of €83,794.32 is €13,965.72 or expressed as a percentage, amounts to 16.66% of €83, 994.32 which is €13, 965.72. The actual deductions were €13, 925.24, therefore not exceeding the 1/6^th threshold by €40.48.

Conclusions

(94) For the reasons set out above, I have concluded that this matter is an Adjudication of costs, conducted in accordance with, and subject to the provisions of the 2015 Act. As the threshold of 15% has been exceeded, the Solicitor is responsible for the costs of the Adjudication, having regard to the mandatory provisions of [section] 158(3) of the 2015 Act".

 

28.  In the period following 6^th July 2022, matters became somewhat more complicated.

 

29.  First, on 19^th July 2022 the applicant applied for a 'consideration' pursuant to section 160(1) of the 2015 Act and Order 99, rule 37 of the Rules of the Superior Courts 1986 (as amended) ("RSC 1986") of the decisions comprised in reports and determinations of the respondent dated 14^th February 2020 (and initially, also, 6^th July 2022 - which was later not proceeded with) in relation to the reduction made by the respondent in respect of the Solicitor's Instruction Fee which was claimed at €45,000 and allowed at €38,750 on adjudication, and the grounds included the following at "(f) Furthermore, the Legal Practitioner seeks consideration of the CLCA's decision dated 6^th July 2022 in which he held that the solicitors are responsible for the costs of the adjudication".

 

30.  Second, the notice party was given an initial return date of 28^th July 2022, later adjourned to 31^st July 2022, for a determination by the respondent of the fees/costs of the adjudication of their Legal Costs Accountants.

 

31.  It was on 31^st July 2022 that Mr. Ward states that the respondent decided that the 'costs of the adjudication' should be adjudicated after the 'consideration' stage and gave directions for the filing and exchange of Legal Submissions in relation to the applicant's application for consideration of the 'determinations' dated 14^th February 2020 (and initially, at this point, 6^th July 2022). In correspondence dated 3^rd November 2022 and in replying Legal Submissions, the notice party raised the issue that the applicant was 'out of time' to apply for a consideration of the 'determinations' of 14^th February 2020 (and 6^th July 2022).

 

32.  At the resumed hearing on 25^th January 2023, the applicant's advisors informed the respondent that while they were not pursuing, as part of the application for consideration, the issue as to whether their bill of costs should be adjudicated under the former 1/6^th (16.67%) rule or under the 15% rule in the 2015 Act, which the respondent had determined on 6^th July 2022, they were maintaining, as part of the 'consideration application',  the issue as to who the responsible or liable party was, under section 158 of the 2015 Act.

THE ISSUE

33.  At the resumed hearing before the respondent on 21^st January 2024, the applicant's position was that the 14 day time period in section 160 of the 2015 Act - i.e., within the period of 14 days of the date on which the determination was furnished to it under section 157(2) of the 2015 Act - for applying to the Legal Costs Adjudicator for 'consideration' (i.e., essentially applying for the reconsideration of the previous determination dated 14^th February 2020) and the making of a determination under section 160 of the 2015 Act, commenced when the adjudication was complete and this could only arise after 'the costs of the adjudication' had been adjudicated upon. The applicant contended it was only then - prior to the 'consideration' stage - that the final figure could be determined.

 

34.  It was contended on behalf of the applicant that the initial 'application for consideration' submitted on its behalf on 19^th July 2022 was in fact premature and it was submitted to the respondent on 21^st January 2024 that he was required to adjudicate on the costs of the adjudication first and before moving to the 'consideration' stage of the process. Mr. Ward Solicitor, in his affidavit sworn on 23^rd July 2024, avers that when those submissions were made to the respondent, the applicant also referred to a separate report of an adjudication dated 24^th February 2023 (a redacted copy of which was exhibited in this application for judicial review) of a different official who was the (then) Legal Costs Adjudicator and who inter alia had also interpreted section 160 of the 2015 Act as requiring him to adjudicate on the 'costs of an adjudication' before a party could apply for a 'consideration' pursuant to section 160(1) of the 2015 Act. (That official was appointed to the position of Chief Legal Costs Adjudicator on the retirement of the respondent as the previous holder of the office in October 2024).

 

35.  The notice party opposed this application and inter alia contended that the 'costs of the adjudication' were not legal costs and fell outside of the process and that the words 'decision' and 'determination' were interchangeable in section 160 of the 2015 Act and therefore the statutory time period of 14 days had commenced on 14^th February 2020.

36.  The respondent reserved his determination and delivered same on 29^th April 2024.

37.  This determination dated 29^th April 2024 is comprehensive and runs to approximately 46 pages. It is entitled "DETERMINATION No.3 - TIME LIMITS pursuant to section 160(5) of the Legal Services Regulation Act 2015, Request for Consideration, Determinations dated 14^th February 2020 and 6^th July 2022." The respondent therein sets out in full the submissions made on behalf of the applicant and the notice party.

38.  At paragraph 135 (p. 29) of the determination under the sub-heading "Discussion and Conclusions", the respondent clarifies that the application for a consideration of his determination of 6^th July 2022 was not being pursued which left his determination dated 14^th February 2020 as the sole matter to be considered.

 

39.  Insofar as the matters which are at issue in this application for judicial review are concerned, the respondent decided that the 14 days referred to in section 160 of 2015 Act had commenced either on 14^th February 2020 or 21^st February 2020 (the latter date, according to the respondent, being when the adjudicated figures were noted by the respondent on the original bill of costs) and, therefore, the applicant was out of time to apply for 'consideration' of the determination dated 14^th February 2020 pursuant to section 160(1) of the 2015 Act and he refused the applicant's application.

40.  At paragraph 148 of his determination dated 29^th April 2024, for example, the respondent inter alia stated that:

"In my view it was open to the Solicitors to have lodged a Consideration within the time limits provided for in s.160 arising from the Determination handed down on 14^th February 2020, or at least within 14 days from 21^st February 2020, and this was not done".

41.  At paragraph 22 of his Affidavit sworn on 23^rd July 2024, Mr. Ward avers that the adjudication was listed before the respondent on 16^th May 2024 for the purposes of adjudicating on the notice party's costs of the adjudication and the respondent adjudicated this in the amount of €20,500 plus VAT.

 

42.  It is contended, therefore, by the applicant that the earliest date in which an application for 'consideration' pursuant to section 160 of the 2015 Act could be made within 14 days of the date on which the determination was furnished under section 157(2) of the 2015 was 16^th May 2024, i.e., being the date when all costs, including the costs of the adjudication had been considered and adjudicated upon and being the point at which, it is argued, the applicant could move to the 'consideration' stage.

 

43.  Accordingly, Mr. Ward Solicitor states that the applicant filed a notice of application for 'consideration' pursuant to section 160 of the 2015 Act on 29^th May 2024 in relation to the respondent's decisions dated 9^th December 2019, 14^th February 2020, 21^st February 2020, 6^th July 2022, 29^th April 2024 and 16^th May 2024 and that when the matter was before the respondent on 25^th July 2024, the respondent advised the applicant's legal costs accountants that he considered that his written determinations dated 14^th February 2020, 6^th July 2022 and 29^th April 2024 were 'reports' made pursuant to the 2015 Act, that he did not have jurisdiction to hear the 'consideration application' and that he was functus officio in the matter.

 

DISCUSSION & DECISION

 

44.  In a number of recent authorities, [2] the Supreme Court has restated the principles which apply in proceedings which raise questions of statutory interpretation.

45.  In summary, the task of a court is to ascertain the meaning of a statutory provision by reference to its language, place, function, context and purpose, with the plain and ordinary meaning of the provision being the predominant factor in identifying the meaning of the particular section or sections of an Act, but the others always being relevant. The actual ('plain') meaning of the words of a statutory provision should, therefore, be 'front and centre' in any process of curial examination.

46.  Whilst a court, when construing those words, is obliged to have regard to, inter alia, the context in which the legislative provision appears, the pre-existing relevant legal framework, and the object of the legislation, insofar as this is discernible, the onus is on those contending that a statutory provision does not have the effect suggested by the plain meaning of the words chosen by the legislature, to establish this.

 

47.  The Long Title to the 2015 Act provides that it is "[a]n Act to provide for the regulation of the provision of legal services, to provide for the establishment of the legal services regulatory authority, to provide for the establishment of the legal practitioners disciplinary tribunal to make determinations as to misconduct by legal practitioners, to provide for new structures in which legal practitioners may provide services together or with others, to provide for the establishment of a roll of practising barristers, to provide for reform of the law relating to the charging of costs by legal practitioners and the system of the assessment of costs relating to the provision of legal services, to provide for the manner of appointment of persons to be Senior Counsel, to provide for matters relating to clinical negligence actions, and to provide for related matters." [3]

48.  The 2015 Act abolished the Office of the Taxing Master and repealed the Solicitors (Ireland) Act 1849.

49.  Part 10 of the 2015 Act addresses 'Legal Costs' and pursuant to S.I. No.502/2019 - Legal Services Regulation Act 2015 (Commencement of Certain Provisions) (No.2) Order 2019, and inter alia, Part 10 of the 2015 Act came into operation on 7^th October 2019. Further. S.I. No. 584/2019 - Rules of the Superior Courts (Costs) 2019, which came into operation on 3^rd December 2019, provided for the transition from the taxation regime to the new legal costs adjudication regime.

50.  Structurally, Part 10 is divided into five Chapters and is further subdivided into sections within those chapters.

 

Chapter 1

 

51.  Chapter 1 is sub-headed 'Interpretation' and has one section - section 138 - dealing with 'Interpretation (Part 10)' and includes inter alia the following interpretation of terms used in Part 10:

""application" means an application for adjudication of legal costs under section 154;

"bill of costs" means a document setting out the amount of legal costs chargeable to a client in respect of legal services provided to him or her, prepared by a legal practitioner in accordance with section 152 or, where applicable, section 154(1);

...

"legal costs" means fees, charges, disbursements and other costs incurred or charged in relation to contentious or non-contentious business, and includes — (a) the costs of or arising out of any cause or matter in any court, (b) any costs which are the subject of an order made by an arbitral tribunal in accordance with section 21(4) of the Arbitration Act 2010 for the adjudication of the costs of the arbitration by a Legal Costs Adjudicator, (c) the costs of a receiver appointed in any cause or matter, on the application of the receiver or of any party to the cause or matter, (d) costs that arise from an inquiry, investigation or other proceeding conducted under an enactment, and (e) the cost of registering judgments as mortgages, of obtaining grants of probate and of letters of administration, of satisfying judgments, and any other costs usually adjudicated ex parte;".

 

Chapter 2

52.  Chapter 2 is sub-headed 'Office of the Legal Costs Adjudicator' and comprises sections 139 to 148 of the 2015 Act.

53.  Section 139 provides for the Office of the Legal Costs Adjudicator; section 140 provides for the register of determinations; section 141 addresses county registrars; section 142 provides for the Guidelines on performance of functions of the Chief Legal Costs Adjudicator under Part 10; section 143 provides for the review of scales of fees; section 144 provides for the making of a strategic plan; section 145 provides for the making of a business plan; section 146 makes provision for the Chief Legal Costs Adjudicator to submit an annual report; section 147 provides for the amendment of the Court Officers Act 1926; and, section 148 provides for the amendment of the Courts (Supplemental Provisions) Act 1961.

 

 

Chapter 3

 

54.  Chapter 3 is sub-headed 'Legal Practitioners' Duties in relation to Legal Costs' and comprises sections 149 to 153 of the 2015 Act.

55.  Section 149 provides for prohibitions on charging costs in certain circumstances; section 150 provides for a legal practitioner providing notice of conduct of matter, costs, etc.; section 151 provides for agreement regarding legal costs; section 152 addresses a legal practitioner providing a bill of costs; section 153 makes provision for a legal practitioner attempting to resolve a dispute.

 

Chapter 4

56.  Insofar as effecting reform of the law relating to the charging of costs by legal practitioners and the system of the assessment of costs relating to the provision of legal services - as referred to in the Long Title - Chapter 4, sections 154 to 161 of the 2015 Act provides for the adjudication of legal costs and are the provisions which provide the context for the matters which are the subject of this judicial review challenge.

57.  Section 154 of the 2015 Act provides for an application for the adjudication of legal costs (with section 154A providing for the adjudication of legal costs and section 154B provides for the adjudication of financially assisted legal costs); section 155 of the 2015 Act provides for matters to be ascertained in the course of adjudication of costs; section 156 prescribes the powers of the Legal Costs Adjudicator; section 157 provides for the determination of applications (and section 157(2) provides that a determination shall, as soon as practicable after it is made, be furnished to the parties to the adjudication).

58.  Section 158 of the 2015 Act provides for the "effect of a determination" as follows:

 

"(158)  (1) Subject to section 160   the determination of a Legal Costs Adjudicator is final and shall take effect 20 days after it is furnished under section 157(2)  to the parties to the adjudication.

(2) Where an adjudication concerns only legal costs as between a legal practitioner and his or her client, and the Legal Costs Adjudicator has determined that the aggregate of the amounts to be paid is less than 15 per cent lower than the aggregate of those amounts set out in the bill of costs, the party chargeable to those costs shall pay the costs of the adjudication.

(3) Where a Legal Costs Adjudicator has determined that the aggregate of the amounts to be paid in respect of the legal costs referred to in  subsection (2)  is 15 per cent or more than 15 per cent lower than the aggregate of those amounts set out in the bill of costs, the legal practitioner who issued the bill of costs shall be responsible for the costs of the adjudication.

(4) Where  subsection (3)  applies, the Legal Costs Adjudicator may determine that the costs of the adjudication be set-off against the aggregate amount determined."

 

59.  Section 158 of the 2015 Act therefore provides a mandatory process for the determination of how the costs of a solicitor and client bill of costs is to be adjudicated, with either the solicitor or the client being liable for the costs of the adjudication depending on whether the amount of 15%, or greater, is deducted from the bill of costs. In the circumstances of where it is deducted, the solicitor is deemed liable.

60.  Section 159(1) of the 2015 Act provides that a Legal Costs Adjudicator may, whether or not at the request of a party to an application for adjudication of legal costs, refer a question of law arising in the application to the High Court for the opinion of that Court.

 

61.  Section 160 of the 2015 Act provides for the "consideration" by the Legal Costs Adjudicator of a determination of an application for the adjudication of legal costs in the following terms:

"(1) Where a party to an adjudication is dissatisfied with a decision of a Legal Costs Adjudicator under section 157 to confirm a charge, not to confirm a charge or to determine a different amount to be charged in respect of a matter or item the subject of the adjudication, he or she may, within 14 days of the date on which the determination is furnished to him or her under section 157(2), apply to the Legal Costs Adjudicator for the consideration of the decision and the making of a determination under this section.

(2) An application under  subsection (1)  shall be—

(a) in such form as may be specified in rules of court or, where applicable, under section 163, and shall specify by a list in a short and 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, and

(b) made on notice to the other party to the adjudication.

(3) The Legal Costs Adjudicator shall, if he or she considers it appropriate to do so, and upon the application of the party entitled to the costs, issue an interim determination pending consideration of an application under  subsection (1), in respect of—

(a) the remainder of the matters or items in the determination to which no objection has been made, and

(b) such of the matters or items that are subject of the application as the Legal Costs Adjudicator considers reasonable.

(4) For the purposes of an application under  subsection (1), the Legal Costs Adjudicator shall reconsider and review his determination having regard to the matters or items specified under  subsection (2)(a), and sections 155 to 158  shall apply in relation to such a consideration.

(5) The Legal Costs Adjudicator, having considered an application under this section may decide—

(a) not to vary his or her determination, or

(b) to make a new determination,

and the determination referred to in  paragraph (a)  or  (b)  shall, subject to section 161 , take effect immediately.

(6) The functions of a Legal Costs Adjudicator in relation to an application under this section shall, insofar as practicable, be performed by the Legal Costs Adjudicator who made the determination to which the application relates."

 

62.  Section 161 of the 2015 Act provides that a party to an adjudication who has made an application under section 160 may, not later than 21 days after the date on which the Legal Costs Adjudicator has made his or her determination under section 160(5), apply to the High Court for a review of the determination concerned.

Chapter 5

63.  Chapter 5 is sub-headed 'Miscellaneous' and comprises sections 162 to 167 of the 2015 Act.

64.  Section 162 provides for privilege in respect of adjudications; section 163 provides for the power to specify forms; section 164 sets out transitional provisions in relation to Taxing -Masters; section 165 sets out transitional provisions in relation to matters in course and legal proceedings; section 166 provides for information, documents, records, etc., and section 167 deals with the references to terms in other enactments and documents.

65.  In considering the plain and ordinary meaning of these provisions, section 160(4) of the 2015 Act explains that for the purposes of an application under section 160(1), the Legal Costs Adjudicator shall "reconsider and review" his "determination" having regard to the matters or items specified section 160 (2)(a) and that "sections 155 to 158 shall apply in relation to such a consideration."

66.  Section 160(1) of the 2015 Act expressly refers to "a decision of a Legal Costs Adjudicator under section 157" and an application being made  "within 14 days of the date on which the determination was furnished under section 157(2)" of the 2015 Act "to the Legal Costs Adjudicator for the consideration of the decision and the making of a determination" under section 160(1) of the 2015 Act.

 

67.  The 'effect' of a determination (made under section 157) is provided for in section 158 of the 2015 Act and, as set out earlier in this judgment, this prescribes certain circumstances for ascribing liability for the costs of the adjudication as between a legal practitioner and his or her client in certain circumstances based on a percentage reduction in the charges in the bill of costs as adjudicated, and provides for set-off. At paragraph 144 of the 'determination' dated 29^th April 2024, the respondent noted that "[i]t was accepted by all parties to the Adjudication that the provisions of [section] 158 are mandatory in nature, and no discretion is afforded to a Legal Costs Adjudicator, in its application to the consequences of an Adjudication outcome".

68.  The adjudication process, therefore, envisages a determination with legal effect and, in this context, does not distinguish between the initial decision and the decision made consequent upon a section 160(1) application for consideration; this is also reflected in the language used and the use of the word "determination" in sections 157(1) and (2), 158(1), 160(1), 160(5) and 161 of the 2015 Act. In addition, issues of timing and sequencing are important when examining the 'costs of the adjudication process' from a contextual perspective in section 157, on the one hand, and section 160(5), on the other hand i.e., prior and post the consideration stage.

 

69.  Section 157(1) of the 2015 Act, provides that a Legal Costs Adjudicator, having considered an application in accordance with section 155, shall, in accordance with this section, make a determination in respect of that application and section 157(2) provides that a determination shall, as soon as practicable after it is made, be furnished to the parties to the adjudication.

 

70.  Section 158(1) of the 2015 Act, which describes the effect of a determination, for example, states that "subject to section 160", the determination of a Legal Costs Adjudicator is final and shall take effect 20 days after it is furnished under section 157(2) to the parties to the adjudication.

 

71.  Section 160(1) of the 2015 Act refers to "the consideration of the decision and the making of a determination under this section". [4]

 

72.  Section 160(5) of the 2015 Act which makes reference to the Legal Costs Adjudicator, having considered an application under this section may "decide (a) not to vary his or her determination, or (b) to make a new determination, and the determination referred to in paragraph (a) or (b) shall, subject to section 161 [5], take effect immediately." [6]

73.  Further, section 161 of the 2015 Act provides for the power to make an application to the High Court for a review of the determination of the Legal Costs Adjudicator under section 160(5), but only where there has first been an application for a 'consideration' pursuant to section 160 of the 2015 Act and section 161 thus gives the High Court extensive powers to (a) confirm the determination of the Legal Costs Adjudicator, or (b) allow the review and (i) remit the matter to the Legal Costs Adjudicator to determine the adjudication in accordance with the decision of the court, or (ii) substitute its own determination for that of the Legal Costs Adjudicator. It cannot, therefore, be the case that the 'adjudication of the costs of the adjudication' could be outside the remit of a review application to the High Court under section 161 of the 2015 Act.

 

74.  In the 'context' of what occurred in this case, the respondent was, therefore, mistaken (beginning at paragraph 146 of the 'determination dated 29^th April 2024) when addressing an argument that the determination issued on 14^th February 2020 was not a final determination, inter alia, because the word 'determination' was not defined in the 2015 Act, in appearing to be persuaded by the fact that the document issued by him on 14^th February 2020 was book-ended with the title on its cover page "Determination on Legal Costs" and concluded, at paragraph 37, with the words "That concludes this Determination" and that there was nothing left to be decided.

 

75.  At paragraph 147 the respondent further observed that, for example, save for a consideration lodged in accordance with section 160 of the 2015 Act, "[t]he only matter for Determination which arose after that date, arose by act and operation of law, and that arises from the consequences of the Determination".

 

76.  This issue is revisited at paragraphs 161 and 162, where the respondent stated as follows:

"(161) I do not accept the Solicitors submission that the Determination issued on 14^th (or 21^st) February 2020, which ever date is taken, was not the effective date of a concluded Adjudication. At the time there was no other matter before me.

(161) The application of [section] 158 is a consequence of the Determination, by act and operation of the Act of 2015. It is not the case that [section] 158 operates in every case. In cases where less that 15% is reduced from the Bill of Costs, the Determination would not have altered in either circumstance. The outcome of the Adjudication would have remained entirely the same. The application of [section] 158 arises as a consequence of the determination, not as part of it".

 

77.  While at paragraph 140 of his determination dated 29^th April 2024, the respondent stated his view that the date for lodging a 'consideration' request would have been either 28^th February 2020 (taking 14^th February 2020 as the date the determination was handed to the parties), or 6^th March 2020 (taking 21^st February 2020 as the date, which in his view, the figures were noted on the Bill of Costs in accordance with O. 99, r. 20 of the RSC 1986), this erroneously omitted the inclusion of the 'costs of the adjudication', which, as it happens, were subsequently adjudicated on 16^th May 2024. In my view, the plain and ordinary meaning of the provisions in Chapter 4, sections 154 to 161 of the 2015 Act and of 'consideration' in section 160(1) of the 2015 Act involves, therefore, a review of the decisions made both in relation to charges and also the 'the costs of the adjudication' pursuant to section 158 of the 2015 Act.

78.  An application which is made within 14 days of the date on which the determination was furnished under section 157(2) of the 2015 Act to the Legal Costs Adjudicator for the consideration of the decision and the making of a determination under section 160(1) of the 2015 Act includes, therefore, 'the adjudication' of the costs of the adjudication as per section 158 of the 2001 Act.

79.  Accordingly, applying the plain and ordinary meaning of the provisions of Chapter 4, sections 154 to 161 of the 2015, the 'determination' of a Legal Costs Adjudicator of an application for an adjudication of legal costs includes the 'costs of the adjudication'.

 

CONCLUSION

80.  As with all judicial review applications, the order granting leave - in this case the order of the High Court (Simons J.) perfected on 11^th November 2024 - which refers to the Statement of Grounds, save for any amendment, fixes the parameters of the challenge for judicial review and defines the issues which I must consider. [7]

 

81.  In this case, when the provisions of Chapter 4, sections 154 to 161 of the 2015 are construed in their plain and ordinary meaning, they satisfy the following grounds relied upon at paragraph (e) of the applicant's Statement of Grounds date stamped on 23^rd July 2024 when considering the determination in "Determination No. 3 -Time Limits" dated 29^th April 2024 in the matter of Hannah Siewert v John O'Melia (bearing adjudication reference number H:LCA:OCAA2019:000423): (i) the respondent did not complete his determination of the adjudication of costs as between the legal practitioner and the client and, therefore, the statutory time limit of 14 days under section 160(1) of 2015 Act had not elapsed; (ii) the respondent was obliged to make a series of findings, to adjudicate on charges in the Bill and to adjudicate on the costs of the adjudication and in so doing must determine the total amount due by the notice party in relation to the bill of costs; (iii) the applicant was entitled to apply for a consideration pursuant to section 160(1) of 2015 Act of the respondent's decisions on the quantum of charges in the bill of costs and quantum of costs of the adjudication.

 

82.  In the circumstances, therefore, I shall grant an order of certiorari quashing the respondent's determination/decision dated 29^th April 2024 entitled "DETERMINATION No.3 - TIME LIMITS pursuant to section 160(5) of the Legal Services Regulation Act 2015, Request for Consideration, Determinations dated 14^th February 2020 [and 6^th July 2022]" [8] and which concluded that the applicant was out of time in respect of its application to lodge a 'consideration' pursuant to section 160 of the 2015 Act to the determination issued on 14^th February 2020.

 

83.  I also consider that 'the matter' should be remitted to the Chief Legal Costs Adjudicator pursuant to the provisions of Order 84, rule 27(4) of the Rules of the Superior Courts 1986 (as amended). Before doing so, I shall invite the applicant to address whether such a proposed remittal order should include any directions.

84.  Given the basis for my decision in granting an order of certiorari in this application for judicial review, there are some matters, therefore, which I do not consider require to be determined and some which I consider should be left over to another occasion, if such arises, when these issues can be more fully argued.

 

85.  Mr. Ward, for example, in his Affidavit dated 23^rd July 2024 explained that in practice, an Excel spreadsheet is prepared by the Clerk of the Legal Costs Adjudicator's Office, showing the allowances and deductions made by the Adjudicator in respect of all charges in a bill of costs, together with the determined costs of adjudication and that this Excel spreadsheet is sent out by the Clerk to the parties in adjudication for their agreement. Mr. Ward avers that, in this case, this has not yet been done, nor has it been done for the items the subject matter of the respondent's decision, dated 14^th February 2020.

 

86.  Mr. Ward avers that, in the normal course of an adjudication, a party should expect to be furnished with a report from the Legal Costs Adjudicator if requested by the party under section 157(8) of the 2015 Act on all contested issues, an Excel spreadsheet prepared by the Clerk showing the allowances and deductions made by the Adjudicator in respect of all charges in the Bill of Costs and the costs of the adjudication, and a certificate of determination issued by the Clerk.

 

87.  In this case, Mr. Ward states that whilst there have been several hearings before the respondent and what he describes as partial decisions made by the respondent, an Adjudicator's report (which had been requested by the applicant) had not been furnished by the respondent and, in addition, the spreadsheet of adjudicated charges and costs and the Certificate of Determination had not been furnished since the adjudication process had yet to reach those stages.

 

88.  Further, at paragraph 7 of the affidavit of Mr. Ward dated 23^rd July 2024 a copy of the Bill of Costs is exhibited and reference is made to matters which have not yet been adjudicated upon by the respondent.

 

89.  While these are discrete matters and comprise (item no. 346) drawing costs and copy in the amount of €19.04, (item no. 347) summons to tax in the amount of €3.40, (item no. 348) stamp duty in the amount of €275, and (item no. 349) attending taxation in the amount of €15.24, the point is made by the applicant that these matters nonetheless have not yet been finally adjudicated upon.

 

90.  At paragraph 18 of his Affidavit dated 23^rd July 2024, Mr. Ward states his understanding that the point at which the adjudication could move to the 'consideration stage' (if requested) "occurred on 14^th May 2024. On this date the Respondent adjudicated the fees/costs of the Notice party's costs in this adjudication." Whilst this may in fact be a reference to 16^th May 2024, as per the applicant's Statement of Grounds - "the statutory time period of 14 days under section 160(1) of the 2015 Act for the Applicant to apply for a consideration of the Respondent's decisions of 9^th December 2019, 14^th February 2020, 21^st February, 2020, 6^th July 2022 and 16^th May, 2024 commenced on 16^th May, 2024" -  I do not consider it necessary to decide that particular question, having regard to my earlier findings.

 

 

PROPOSED ORDER

 

91.  I shall, therefore, make an order of certiorari quashing the respondent's determination dated 29^th April 2024.

 

92.  I shall put this matter in for mention before me at 10:15 on Tuesday 11^th March 2025 to allow the applicant to address the question of directions, if any, on the proposed remittal of the matter to the Chief Legal Costs Adjudicator and any further consequential or ancillary matters which arise.

 

 

CONLETH BRADLEY

4^th March 2025