The Court of Appeal confirmed that a solicitor firm that succeeded in an appeal is entitled to its costs against Brian Egan, rejecting his application for no or reduced costs or to reserve the costs until the remaining action is heard.
In a costs ruling delivered on 17 February 2023, Mr Justice Noonan said Egan had not established a basis to depart from the general rule under section 169 of the Legal Services Regulation Act 2015. Justices Faherty and Pilkington agreed.
The ruling followed the court’s principal judgment on 20 December 2022. In that judgment, the court had expressed the provisional view that the second named defendant, referred to as “the Firm”, had been entirely successful in the appeal and was entitled to its costs. Egan was allowed to make written submissions arguing for a different order.
Egan proposed either that there should be no costs order or that the award should be reduced. Alternatively, he asked that costs be reserved until the action continuing against the third named defendant was heard. He relied in part on a surviving notice of indemnity and contribution between the Firm and the second defendant.
He also argued that the Firm had avoided service and delayed delivering its defence, and that it had delayed bringing its motion to dismiss. Noonan said the principal judgment had accepted that about one year of delay in delivering the defence was attributable to the Firm. But the operative delay that led to dismissal of Egan’s claim occurred later, and the earlier delay was not material to the appeal costs. The costs of motions brought by Egan had already been dealt with when those applications were heard.
As to the motion to dismiss, Noonan said the period of delay that led to the dismissal was one for which the court had held Egan responsible. The court therefore rejected his argument that the Firm was responsible for that same delay.
The notice of indemnity did not alter the result, Noonan said, because Egan’s claim against the Firm had been dismissed and any continued participation by the Firm would be in effect as a third party, outside Egan’s claim. Without deciding the point, he said the Firm could argue that section 35 of the Civil Liability Act 1961 attributed to Egan any negligence alleged by the third defendant against the Firm.
The court confirmed the Firm’s entitlement to the costs of the appeal against Egan, including the costs of the written submissions on the costs issue. The ruling did not decide the continuing action against the third named defendant.