The High Court has allowed Galway Roscommon Education and Training Board to discontinue its claim against Orla Macken Walsh for repayment of pension payments, with the defendant entitled to her reasonable costs of the proceedings.
In a judgment delivered on 14 April 2022, Ms Justice Niamh Hyland said those costs should take account of the nature of the case. She specified that they include the pleadings, an appropriate number of consultations, written submissions, costs for junior and senior counsel, and reasonable instruction and brief fees for the hearing of a preliminary issue.
The Board had sought €150,211.53, alleging that pension payments made between 1998 and 2005 were not due because Walsh had returned to teaching. It stopped her pension in 2005 but did not then seek repayment. Proceedings were issued in November 2013. Walsh denied owing the money and filed a defence, but no counterclaim.
A preliminary issue was due for trial on 9 March 2021: whether the relevant statutory scheme entitled Walsh to retain her pension while teaching. After receiving her written submissions, the Board said on 3 March that it intended to discontinue, and the trial date was vacated. The parties did not agree on the terms, leading the Board to bring the motion for leave to discontinue in March 2022.
The dispute before Justice Hyland concerned costs. The Board offered reasonable costs on a party and party basis. Walsh argued for legal practitioner and client costs, relying on the wording of section 169(4) of the Legal Services Regulation Act 2015 and, alternatively, the Board’s conduct.
The judge interpreted section 169(4) as requiring her to identify reasonable costs in the circumstances, without categorising them as either party and party or legal practitioner and client costs. She said the case involved complex issues and required specialised knowledge from Walsh’s lawyers. She also said the Board had pursued the claim for nine years and decided to discontinue on the eve of the preliminary issue hearing, after receiving Walsh’s submissions.
Justice Hyland said she did not need to decide whether the conduct raised by Walsh met the criteria in *Trafalgar Developments Ltd v Mazepin*. For completeness, she said the complaints did not fall within those categories. She criticised the Board’s unsupported 2013 reference to deceit, but said that single reference did not justify legal practitioner and client costs. She also found no basis to treat the proceedings as having a collateral purpose.
The court made no order as to the costs of the discontinuance motion at that stage. It invited written submissions by 26 April 2022 if either party opposed that approach; absent submissions, no order would be made. The judgment records that separate pension proceedings brought by Walsh were ongoing and that the Board had made offers concerning pension payments, but those matters were outside the claim being discontinued.