The Court of Appeal has dismissed Anthony Fitzpatrick’s appeal against an order that he pay the costs of the official liquidator and the Revenue Commissioners arising from his application to have his remuneration as provisional liquidator fixed.
In an ex tempore judgment delivered on 7 February 2022, Mr Justice Murray, with whom Ms Justice Whelan and Ms Justice Costello agreed, confirmed the High Court order. The appeal concerned only the costs of the remuneration application. Fitzpatrick had not appealed the earlier decision fixing his remuneration.
Fitzpatrick served as provisional liquidator of United Power Limited from 8 to 29 April 2019. He sought €126,206.01, including fees and expenses, VAT and legal costs connected with a failed interim injunction application. In March 2021, the High Court fixed his remuneration at €48,804.12, comprising €37,000 in fees, €2,751.32 in outlay and VAT. It disallowed the injunction costs.
Revenue had offered in September 2019 not to oppose remuneration of up to €37,000, together with €13,196.60 for legal costs. Fitzpatrick rejected the offer and continued to seek a substantially higher amount. The High Court later refused his application for the costs of pursuing the fee claim and ordered him to pay the costs incurred by the official liquidator, Aiden Murphy, and Revenue.
The Court of Appeal said a former provisional liquidator generally should recover the costs of a necessary, unopposed application for remuneration. But where the claim is actively opposed, the costs rules apply, and the court can consider whether a party made an offer to settle. Fitzpatrick obtained some remuneration, but the reduction from the amount claimed was substantial, so he was not wholly successful.
The appeal court said Revenue’s offer was a relevant factor because accepting it would have avoided a contested application involving 20 court appearances and a full-day hearing. The judgment noted that the company had assets of €227,000, preferential creditors exceeding €883,000 and other creditors owed more than €2.7 million.
The court concluded that the High Court had applied the costs rules to Fitzpatrick’s failure to beat Revenue’s offer. It said his claim included fees the High Court considered excessive and inadequately supported, as well as legal costs he was not entitled to recover in the remuneration application. The court dismissed the appeal and confirmed the High Court judgment and order.