The High Court has struck out an application to tax a plaintiff’s legal costs, finding that an eight-year period of inaction made it unfair to require the defendant to proceed with the taxation.
In a judgment delivered on 30 July 2013, Mr Justice Hogan ruled on the defendant’s motion to strike out the taxation process. The plaintiff had been a minor when injured in a road traffic accident near Tullamore, Co Offaly, on 21 October 1994. Her personal injury proceedings were settled by consent order in 2001, which provided for the taxation of her costs.
The plaintiff’s solicitor sent a bill of costs in August 2001. In August 2002, the defendant’s solicitor sent a cheque for just under €13,000 in an effort to settle the costs. The plaintiff’s solicitor said he had orally expressed dissatisfaction with the amount; those acting for the defendant denied this, and no record of such a conversation was produced.
A related case arising from the same accident proceeded to taxation arrangements and was settled after an improved offer. The plaintiff’s solicitor said he intended to follow the same course in this case, but an office filing error led to the file being stored with the completed related case. It was rediscovered in September 2010. The cheque was returned that month, and the plaintiff later sought taxation of a fresh bill claiming €27,900.
The defendant argued that the taxation should be stopped because it was time-barred or unduly delayed. The court rejected the limitation argument: a costs order is not enforceable for this purpose until the amount payable has been determined, so the 12-year limitation period had not begun. It also held that the six-year rule for executing judgments did not apply because taxation determines the amount due rather than enforcing an already quantified judgment.
However, applying the three-part test in Primor, Mr Justice Hogan found the delay both inordinate and inexcusable. He accepted that the original failure arose from an understandable filing error, but said the ensuing failure to return the cheque and arrange taxation could not be excused.
The court also found that proceeding would be unfair. The defendant’s file was incomplete, including missing pleadings and expert reports; papers from the related case had been destroyed; and relevant staff had left or retired. The judge said the passage of time had impaired the defendant’s ability to give instructions and that the silence after the 2002 cheque had led it to believe the matter was resolved.
The court therefore granted the relief sought in the defendant’s motion dated 21 January 2013 and struck out the taxation process. It did not decide the amount of costs payable.