The High Court dismissed an application by ten plaintiffs for an interim payment towards their legal costs, ruling that it could not make the order after a final costs order had been entered without reserving liberty to apply.
Mr Justice David Keane delivered the judgment on 1 June 2017. The plaintiffs relied on Order 99, rule 5 of the Rules of the Superior Courts and a practice direction permitting payment on account of costs pending taxation. Their solicitor gave the undertaking required by the practice direction: any amount paid above the sum ultimately allowed on taxation would be repaid.
The underlying action and two related cases had been decided in March 2016. In a costs ruling the following month, the judge ordered the defendants to pay the plaintiffs’ reasonable legal costs, to be taxed and ascertained if the parties could not agree. The order included reserved costs and discovery costs, and was not stayed pending appeal. No party sought, and the court did not grant, liberty to apply.
The costs taxation was under way when the plaintiffs brought their motion in April 2017. The judgment records that bills had been served in June 2016 and that the Taxing Master had heard submissions on counsel’s fees and issued an interim ruling on accountants’ and interpreters’ fees. The next stage, concerning the solicitors’ professional fees, was listed for May 2017. The accounts differed over why the taxation was then adjourned, and the judge said it was unclear what had occurred.
The defendants argued that the court was functus officio: it had completed its role after making the final order and could not alter it. The judge accepted that the application would change the effect of that order, despite the plaintiffs’ argument that an interim payment would be separate from it. He also rejected the contention that liberty to apply was inherent in the final order. Such liberty had to be expressly reserved for a later application in those proceedings.
The judge agreed with an earlier High Court decision that Order 99, rule 5 can permit payment on account after a case has been determined. But that did not resolve whether such an order could be made after a final order where liberty to apply had not been reserved. He concluded it could not and dismissed the motion. The judgment did not determine the amount, if any, that would ultimately be allowed on taxation.