The High Court refused the plaintiffs’ application for an order directing that two senior counsel be allowed in the taxation of their costs, leaving the issue to the Legal Costs Adjudicator if the parties cannot agree.
The proceedings concerned claims for damages arising from alleged negligent misreading of slides and histology. The plaintiffs alleged that this left the first-named plaintiff in a critical condition that could have been avoided. The allegations were not determined in this judgment.
The case had been fast-tracked for hearing, but after the outbreak of the virus the parties successfully mediated. They agreed that the court would decide only whether to certify for two senior counsel, on written submissions and without an oral hearing.
The plaintiffs argued that the case was unusually complex. They cited allegations involving at least eight slides and separate alleged histology negligence by the HSE and its hospital in 2009. They also said the case had to be structured to preserve possible future claims, was urgent given the first plaintiff’s health, and involved a large range of experts.
The first-named defendants argued that, despite the case’s importance to the plaintiffs, it was not distinguishable from most personal injury cases involving medical negligence, where only one senior counsel is allowed on taxation. They also disputed the court’s jurisdiction to make the requested direction. The second-named defendants made similar submissions and argued that the law was settled.
Mr Justice Kevin Cross held that the court had jurisdiction under Order 99, rule 1(5), to make the order sought. But he said the Legal Costs Adjudicator generally decides which counsel’s fees are allowed, and the court should intervene only in exceptional cases. He accepted that medical negligence cases are complex and that this case was clearly complex, but found the plaintiffs’ reasons did not meet the high threshold for directing the adjudicator to allow two senior counsel.
The judge stressed that he was not deciding whether a second senior counsel should ultimately be allowed. He refused the application and said that, absent agreement, the issue would be decided on taxation. He made no order as to costs on the application.