The High Court refused Samantha Atkinson’s application for a payment on account of legal costs after she settled her action over an injury she alleged was caused by a vaccine administered in 2009.
Mr Justice Alexander Owens held that the settlement terms did not reserve any role for the court in enforcing the agreement. He also found that most of the costs claimed related to presenting Atkinson’s claim under the settlement framework, rather than pursuing the court action. Those costs could not be awarded under section 168(1) of the Legal Services Regulation Act 2015, he said.
The action named the Minister for Health and Children, the Health Service Executive, GlaxoSmithKline Biologicals S.A. and the Health Products Regulatory Authority as defendants. The judgment states that the settlement framework established an extra-judicial process to quantify payments, without an admission of responsibility for injury. Questions of causation, compensation and costs were removed from determination in the action.
Under the framework, disputes about the value of a claim or the applicable percentage could be referred to a mediator, with a right of appeal to a retired superior court judge. Costs could be agreed or referred to a legal costs accountant, whose determination the parties had agreed would be binding. The framework set out which costs were allowable and which were excluded.
The judge said the settlement contained no provision allowing an amount agreed or assessed under the framework to be entered as a judgment, and did not permit the action to be used to enforce the settlement. By adhering to the agreement, Atkinson was precluded from taking further steps in the action, and her rights instead arose under the settlement terms.
Atkinson had also relied on orders and exchanges in other cases settled using the same framework. The court held those materials did not establish judicial estoppel or estoppel by convention, and could not be used to add to or alter the written agreement. The judge said implying a term for court-ordered interim costs would cut across the express arrangements the parties had made.
The judgment says costs will be awarded against Atkinson unless submissions on costs are made within 21 days. The successful party will receive costs unless there is good reason to depart from the general rule.