The Court of Appeal has dismissed Sean Kenny’s appeal over costs arising from his judicial review proceedings against the Legal Costs Adjudicator, leaving in place an order that solicitor Greg Winters recover his High Court costs from Kenny.
In a judgment delivered on 14 February 2024, Ms Justice Power said the High Court judge had correctly applied the principles governing when a notice party may be made responsible for costs in judicial review proceedings. The appeal concerned the costs orders, not the underlying determination of the legal bill.
Kenny had challenged the Adjudicator’s February 2022 refusal to consider his objections to Winters’ bill of costs, which had been adjudicated after Winters represented Kenny in family law proceedings. The Adjudicator held that Kenny’s 14-day period to seek reconsideration began when the decision was given orally on 19 November 2021, and that his request was out of time. Kenny maintained that the period began when he received the written report on 1 February 2022.
The substantive judicial review reliefs were agreed between the parties, subject to the High Court’s approval. The Adjudicator did not participate. The remaining dispute at the High Court was who should pay the costs. Kenny argued Winters should bear them, alleging that Winters’ costs accountant had opposed his position at a December 2021 hearing and that Winters later failed to intervene after being copied on Kenny’s request for reconsideration.
The High Court found no basis to hold Winters responsible for the Adjudicator’s decision, and ordered Kenny to pay Winters’ costs of the motion. The Court of Appeal said there was no evidence supporting Kenny’s account of what was said at the December hearing; he had not attended it. It also held that a party’s failure to support an opponent, or failure to act when not called upon and under no legal duty to act, did not make that party responsible for the decision under review.
The appeal court noted that Winters had agreed to the substantive reliefs and had offered to resolve the costs issue with no order as to costs. Kenny rejected the offer and continued to seek costs against Winters. The court found no reason to interfere with the High Court’s exercise of discretion and dismissed the appeal.
The Court of Appeal provisionally ordered Kenny to pay Winters’ appeal costs. Kenny may seek a short hearing on an alternative costs order within seven days; if the provisional order is confirmed after such a hearing, he may face the additional costs of that hearing. The judgment also records that the parties had agreed the High Court’s perfected order contained a clerical flaw and would provide a corrected draft under the slip rule.