The High Court has refused Sean Kenny’s application for his judicial review costs to be paid by solicitor Greg Winters, finding Winters was not responsible for the Legal Costs Adjudicator’s decision that prompted the proceedings.
In a judgment delivered on 7 July 2023, Mr Justice Mark Heslin said the parties had agreed draft orders giving Kenny the substantive relief he sought, without objection from either Winters or the adjudicator, Barry Magee. The remaining dispute was who should pay the costs of the proceedings.
Kenny had challenged Magee’s 24 February 2022 refusal to consider his application under section 160 of the Legal Services Regulation Act 2015. Kenny maintained that the 14-day period for seeking a consideration began when the adjudicator’s written determination was furnished to him on 1 February 2022. Magee’s refusal relied on his earlier view that the period began when he delivered his determination orally on 19 November 2021.
The judgment recounts that Kenny had missed the scheduled 2pm hearing on 19 November and arrived at 3.30pm, after the matter had been dealt with. Magee then told him the main reasons for the decision. Kenny later sought the determination and report from the adjudicator’s office. The court found the statutory duty to furnish the determination rested with Magee, not Winters or Winters’s costs accountant.
Winters had not defended the challenged decision and did not participate in the judicial review. The judge found that he had not caused or contributed to Magee’s refusal. Although Winters’s costs accountant had argued at a December 2021 hearing that the statute did not allow an extension of time, the court said that submission concerned a secondary issue. The central issue in the judicial review was when the statutory period began, and the accountant had made no submission on that question.
The court also rejected the argument that Winters’s failure to intervene after receiving a copy of Kenny’s solicitor’s letter to Magee made him responsible. Kenny had not asked Winters to take any action, the judgment said.
Heslin J held that Kenny was not entitled to costs against Winters. He found Winters was entitled to the costs of the costs application, including senior and junior counsel, after Kenny declined an offer that there be no order as to costs and proceeded with the dispute. The court directed that a draft order reflecting its decision be furnished within 14 days.
The judgment records that the agreed substantive orders included declaring Magee’s 24 February 2022 decision null and void and quashing it, as well as declaring that Kenny’s application was made within 14 days of the written determination being furnished. It also records that the requested relief to quash a certificate was unnecessary because, according to Winters, no such certificate existed.