The Court of Appeal has allowed Oliver Landers’s appeal over how the High Court set the costs of proceedings against Raymond Dixon, replacing a €20,000 measured costs award with an order for Landers’s taxed costs.
The appeal concerned costs alone. The underlying proceedings began with a specific performance action arising from the sale of licensed premises. Dixon consented to judgment for €49,541 in June 2008. The costs of that application were later taxed at €41,109, bringing the total due to €90,650.
A judgment mortgage was registered against Dixon’s interest in his family home in February 2011. Landers then brought proceedings seeking, among other things, a well charging order and an order for sale of premises in Kildare. The High Court made a well charging order in January 2012, later amended. The matter appeared before the Examiner on five occasions, and Dixon sought time to address the debt while intending to sell property.
After Landers sought possession, the motion was adjourned several times. Dixon sold two sites and paid €75,655 in April 2014. He paid the remaining €5,006 on 3 November 2014. The judgment records that Dixon had also paid about €28,000 in interest and had fallen ill in 2010–2011, which appeared to be a factor in the delayed payment.
By November 2014, the High Court had only to decide the costs of the well charging proceedings and possession motion. Dixon’s counsel sought no costs order or, alternatively, measured costs of €8,000. Landers’s counsel said a costs bill had been prepared for €47,000, including VAT, counsel’s fees and outlay, and sought the usual order for costs to be taxed. The High Court instead measured costs at €20,000 including VAT.
Landers argued on appeal that the High Court had no proper basis for fixing that amount. The Court of Appeal accepted that courts can measure costs in a gross sum, but said the discretion must have an evidential or otherwise objectively defensible basis. It distinguished this case from a straightforward matter in which a judge could make an informed estimate: there had been about 20 applications over three years, and the High Court lacked material to assess the appropriate sum.
The appeal court said the High Court judge should have indicated an intention to measure costs and given the parties, particularly the party likely to be adversely affected, an opportunity to make brief submissions and provide relevant material. It allowed the appeal and substituted an order for Landers’s taxed costs. The judgment does not set a final taxed amount.