The High Court refused an application by Thomas McAlister for an interim payment of legal costs after his commercial action against Churches Estate Agents Ltd was settled by consent during its third day of hearing.
Mr Justice Garrett Simons delivered the judgment on 27 November 2023. The court had ordered the defendant to pay the plaintiff’s High Court costs up to 16 May 2023, with those costs to be adjudicated if the parties could not agree. The order did not set the amount of costs.
The plaintiff later sought an interim payment pending adjudication. His fee estimate claimed €188,493.98 including VAT, and his counsel submitted that half that amount, €94,000, would be appropriate. The judgment records no evidence about whether the listed fees had been invoiced or paid.
The proceedings, begun in February 2020, concerned the proposed purchase of two public houses. The plaintiff had earlier made an unsuccessful application for a Mareva injunction. The action was set down for hearing in June 2022 and allocated a May 2023 trial date. The defendant had offered €80,000 plus adjudicated costs shortly before the hearing; the action was ultimately compromised on the third day. The judgment does not state the settlement amount.
Mr Justice Simons said interim payments are discretionary and are principally intended to address unreasonable delay in recovering costs. He found no indication that the defendant had delayed the proceedings or would delay the adjudication process. The action had reached its hearing listing within two and a half years, and there was nothing to suggest an unreasonable wait for costs adjudication once started.
The judge also noted that the plaintiff had not shown that he had taken steps to begin adjudication. Although the costs order had been perfected on 31 May 2023, the plaintiff had not prepared a formal bill of costs. The fee estimate submitted with the application did not meet the requirements for such a bill, and the defendant could not initiate adjudication without one from the plaintiff.
The commercial nature of the proceedings also weighed against interim payment, the judge said. There was no evidence that the plaintiff’s case was being pursued on a “no foal, no fee” basis or that he could not pay his legal fees. The application for an order directing interim payment was refused. The judgment did not quantify the costs ultimately recoverable, which remain subject to agreement or adjudication.