Court of Appeal: Trial judge did not properly engage with bill of costs when measuring solicitor’s fees at €53,000
The Court of Appeal has overturned a decision by the High Court which measured a solicitor’s costs at €53,000. The solicitor had sued the defendants for fees for acting in litigation contesting a family member’s will.
About this case:
- Citation: IECA 90
- Court:Court of Appeal
- Judge:Mr Justice Senan Allen
Delivering judgment in the case, Mr Justice Senan Allen held that the trial judge may have been distracted by a “wild allegation” that the solicitor had taken money from the estate. However, it was determined that the defendant was entitled to challenge the bill of costs without adducing expert evidence from a legal costs accountant.
The court held that the trial judge did not adequately engage with the bill of costs and that the costs issue should be determined by a legal costs adjudicator.
The main defendant, Ms Rippington, had previously engaged the plaintiff as solicitor. The defendant’s sister had passed away in March 2011 and she wished to obtain legal advice in respect of the form of will. The plaintiff acted for the defendant until August 2012 when he was discharged.
In 2013, the plaintiff drew up a bill of costs which totalled €61,000, with credit given for €8,000 paid on account. By summary summons issued in January 2014, the plaintiff sought judgment for €53,000. The matter was eventually transferred to plenary hearing with judgment being granted in favour of the plaintiff in March 2020.
In the judgment, the trial judge left over the issue as to whether the legal costs should be adjudicated or whether they should be measured by the court. Subsequently, the coronavirus pandemic resulted in the case being adjourned for two years. When it came back before the trial judge, the solicitor applied for costs to be measured based on a bill of costs produced to court.
In the March 2020 ruling, the trial judge had noted that Ms Rippington had initiated a number of proceedings against other individuals which were invariably rejected at first instance and on appeal. This led to an Isaac Wunder order being made against Ms Rippington in 2019. The court also rejected bald assertions that the legal services had not been up to standard.
Ms Rippington (a litigant-in-person) opposed the application for measured costs and argued it should go to an adjudicator. She claimed that she had suffered harassment and intimidation from her solicitor outside of court. She also alleged that the plaintiff had taken €30,000 from the estate and the bill of costs was inflated to reflect this.
The defendant argued that she had consulted with a legal costs accountant who had written a letter stating the bill of costs would not stand up in adjudication. However, the letter was not produced in court although it was not contested that she had previously produced it.
The court held that it would measure the bill of costs, stating that it was perfectly understandable given the history and context of the proceedings. The bill of costs had been prepared by a reputable firm of costs accountants, the court said. As such, the court measured costs at €55,000. The defendant appealed the decision.
Court of Appeal
In delivering an ex tempore ruling, Mr Justice Allen began by noting that the €55,000 sum was plainly wrong and had not been corrected by counsel at the time. Instead, only €53,000 had been claimed.
The court referred to Scanlan v. Gilligan  IEHC 825, which acknowledged that litigants-in-person could be quite difficult as they often did not accept the unfavourable rulings of courts. Further, it was noted that litigants-in-person often had points of real substance to make which were obscured by excessive pleading and insisting on pursuing bad points.
The present case involved challenges for the trial judge due to the prolixity of Ms Rippington’s argument. She appeared to be confused as to the plenary hearing of the action and the adjudication of costs. She also argued that the plaintiff had been paid from the estate and that the adjudication would potentially allow her to re-open the question of liability to pay the legal costs.
However, the letter from the legal costs accountant (written and exhibited in 2014) outlined that the plaintiff’s work on the file did not warrant the fees claimed.
It was common case that the High Court had an inherent jurisdiction to refer a bill of costs to adjudication. Mr Justice Allen commented that the court did not appear to have jurisdiction under Order 99 RSC to measure costs. Instead, the jurisdiction derived from the inherent jurisdiction to adjudicate legal professional fees in the same manner as any other professional services.
The court held that Ms Rippington was entitled to challenge the bill of costs and to seek that the matter be dealt with in adjudication. Having read the transcript of events, it seemed that the trial judge decided at an early stage to measure the costs.
Ms Rippington did not help matters by making a “wild allegation” against the solicitor, the court said. However, she had outlined her view that the bill was too high. Her entitlement to contest the bill was not contingent on adducing expert evidence.
Mr Justice Allen noted that Ms Rippington was a “vexatious litigant” and the trial judge may have viewed the matter as “tied in the morass of protracted litigation”. Despite this, the trial judge erred by not properly engaging with the bill of costs, which included a general instructions fee of €45,000, a €1,000 charge for postages and work which had not been done.
The court held that the trial judge erred by failing to clearly identify the core issue of whether the costs should be adjudicated or measured and in his approach to the measurement of the claim.
It was held that judges do not have the level of expertise in costs as legal costs adjudicators and, as such, it was appropriate for the matter to be sent to adjudication.
Loomes Practising Under the Style and Title of Thomas Loomes and Company v. Rippington  IECA 90