The High Court is minded to direct receiver Tom Kavanagh to pay Harry and Ursula Hilliard €67,750 within seven days as an interim payment on account of costs. The proposed order also requires Kavanagh to pay €6,000 plus VAT for the costs of the interim payment application.
In a judgment delivered on 24 November 2023, Mr Justice Kennedy said the parties could make further oral submissions about including the costs of Kavanagh’s unsuccessful appeal, or the allowance for those costs. They had to notify the Registrar by 1pm on 27 November. If they did not, the order would be perfected in the terms set out in the judgment. The judgment records the court’s intention and proposed terms; it does not state that the order had already been perfected.
The dispute arose from a February 2020 order requiring Kavanagh to pay the Hilliards’ costs of an unsuccessful application for interlocutory relief, including injunctions. The High Court refused a stay. Kavanagh appealed on costs, and the Court of Appeal dismissed that appeal on 3 July 2023. The amount of costs remains for agreement or adjudication.
The Hilliards sought an interim payment while costs adjudication was pending. Their draft bill claimed €104,865.47. Kavanagh did not contest liability or oppose an interim payment in principle at the hearing, but submitted that the payment should be about one-third of the claim, around €35,000, and that it should await a formal bill. He also argued that money paid should be held pending related insolvency proceedings and raised possible set-off discussions involving Havbell DAC, which appointed him receiver.
The judge rejected those arguments as grounds to withhold or ringfence the payment. He said Havbell was not a party to this case, there was no right of set-off, and the pending bankruptcy proceedings were not before the court. The judgment also says the court was not deciding the effect of those proceedings or any possible entitlement of the Hilliards’ legal advisers to assert a lien or apply under the Legal Practitioners (Ireland) Act 1876.
The proposed €67,750 comprises €55,000 on account of the High Court costs and a provisional allowance for the appeal costs. The judge stressed that the figure is not an estimate of what adjudication will ultimately allow. The Hilliards’ solicitor undertook to repay any overpayment established by adjudication. The solicitor also undertook to hold the payment in a client account and not distribute it for six months, except by agreement or court order. Kavanagh’s solicitor undertook to take reasonable steps to agree the costs and to make a good-faith counterproposal within a week.
The court separately directed €6,000 plus VAT for the Hilliards’ costs of this application, in lieu of adjudication, finding they had been substantially successful.