The Court of Appeal has proposed measuring A.M.’s appeal costs at €43,303, inclusive of VAT, after rejecting L.M.’s argument that the court no longer had power to measure costs under the Legal Services Regulation Act 2015.
The costs ruling, delivered on 15 October 2021 by Noonan, Murray and MacGrath JJ, followed the dismissal of L.M.’s appeal in a principal judgment delivered on 14 July 2021. The court had provisionally indicated that A.M., the notice party, should receive her costs. L.M. was allowed 14 days to make written submissions seeking a different order but made none, so the costs order took effect.
A.M.’s solicitors then asked the court to measure the appeal costs, as had been done in the High Court. The court directed her solicitor to provide an affidavit with the bill and a legal costs accountant’s opinion. The solicitor filed a fee note, counsel’s fee note and an opinion from Noel Roarty, who considered the combined fee reasonable. A second opinion, from William Brennan of Connolly Lowe, also said the fees were reasonable and likely to be allowed by the Legal Costs Adjudicator.
In a replying affidavit, L.M. accepted that the court’s costs-measuring power was addressed by Order 99, rule 7(2) of the Rules of the Superior Courts, but argued that the 2015 Act had displaced it. He said measuring the costs would improperly interfere with the Legal Costs Adjudicator’s functions.
The court rejected that submission. It said the recast rule, which came into effect after the 2015 Act and refers to it, preserves the court’s ability to measure costs as an alternative to adjudication. The court added that the Act contained no express wording removing that longstanding power. Although measuring costs directly is unusual, the court said it can be appropriate in particular circumstances.
Here, the court cited the exceptional nature of the proceedings and the risk of oppression referred to in the principal judgment, arising from an earlier costs issue. It also noted that L.M. had not supplied a competing costs accountant’s opinion. On that basis, it considered it appropriate to accept the two opinions supporting the amount claimed.
The ruling says the court “proposes to measure” A.M.’s costs at €43,303. It does not state that the proposed sum was made a final measured-costs order in this ruling.