The High Court allowed Kenneth Price’s appeal over a Circuit Court costs order, setting that order aside but directing that each side bear its own costs of the High Court appeal.
In a supplemental judgment delivered on 22 September 2023, Mr Justice Garrett Simons considered whether an earlier settlement offer should affect the allocation of appeal costs. He concluded that it was not determinative, given the unusual procedural history and the timing and circumstances of the offer.
The appeal had been confined to costs. The Circuit Court order of 24 January 2020 had directed Price to pay the legal costs of the proceedings before that court. Price sought to have that costs direction set aside. In correspondence sent between 31 January and 4 March 2022, his side offered to agree that each party would bear its own High Court appeal costs if Ann Douglas, the personal representative of the deceased original respondent, consented to the appeal being allowed.
Price argued that he had succeeded in the appeal and that the offer had been reasonable. He asked the High Court to order Douglas to pay his appeal costs from 18 February 2022 onwards. The court noted that section 169 of the Legal Services Regulation Act 2015 generally provides for costs to follow success, subject to the court’s discretion and the circumstances of the case.
Justice Simons said Douglas had not opposed the appeal. Her solicitor had indicated that she was neutral, and she did not appear at the appeal hearing. The judge said those circumstances weighed against making a costs order against her.
The court also examined when the offer was made. The original respondent, Patricia O’Callaghan, died on 26 November 2020. Douglas was substituted as respondent by court order on 24 March 2022, after the offer correspondence. The judgment said the earliest date the appeal could be regarded as properly served on Douglas was 27 January 2023. The solicitor who received the offer was not on record in the proceedings, and the offer related to a client who was not then a party and lacked capacity at that time to compromise the proceedings.
The judge also said the correspondence threatened to make Douglas responsible for costs incurred before she joined the case, undermining the offer’s reasonableness. After joinder and service were addressed, Douglas’s solicitor notified Price’s side that she would not oppose the appeal. The judge concluded that Douglas had acted reasonably and that, in the interests of justice, each party should bear its own appeal costs.
The formal order allowed the appeal and set aside the Circuit Court costs order. The High Court made no order as to the costs of the appeal.