Court of Appeal dismisses appeal and orders appellant to pay respondent's costs under Legal Services Regulation Act 2015.

THE COURT OF APPEAL

CIVIL

Approved/No redactions needed

Court of Appeal Record No. 2025/120

High Court Record No. H.P. 2024/4898

Binchy J. Neutral Citation Number [2026][ IECA 131

Meenan J. McDonald J.

BETWEEN:

AGNIESZKA NOWAK

Plaintiff/Appellant

-AND-

THE COURTS SERVICE OF IRELAND

Defendant/Respondent

JUDGMENT (on costs) of Mr. Justice McDonald delivered on 15th July 2026

1. On 11th May 2026, I delivered a judgment (neutral citation [2026] IECA 81) dismissing the appellant’s appeal from the judgment and order of the High Court dated 10th April 2025. Binchy and Meenan JJ. agreed with that judgment.

2. By the order under appeal, the High Court had extended the time for delivery of the defence of the respondent by 7 days from the date of the order. The order was made under O. 27, r. 9 of the Rules of the Superior Courts (“the Rules”) following the hearing of the appellant’s motion seeking judgment in default of defence under that rule.

3. In para. 75 of my judgment, I expressed the following provisional view in respect of the costs of the appeal: “it is clear that the defendant has been entirely successful in this appeal. In light of the provisions of s. 169(1) of the Legal Services Regulation Act 2015, it follows that the defendant is presumptively entitled to an order for the costs of the appeal against Ms. Nowak. However, in the event that Ms. Nowak wishes to canvass for a different order as to costs, she is at liberty to deliver a short written submission (of not more than 1,500 words) within 14 days from the date of delivery of this judgment, failing which an order for costs will be made in favour of the defendant, such costs to be adjudicated in default of agreement.”

4. On 22nd May 2026, the appellant delivered written submissions in which she argued that the standard rule that costs follow the event should not be applied. The respondent has not delivered any submission in response and the time for doing so has expired. Accordingly, the issue of costs is to be decided solely on the basis of the submissions made by the appellant, the question being whether she has put forward any proper basis to persuade the Court to displace the presumption that arises under s. 169 of the Legal Services Regulation Act 2015 (“the 2015 Act”).

5. In her submission, the appellant does not seek to argue that the respondent was not entirely successful on this appeal. Instead, she seeks to resist an order for costs on the basis of five matters which are asserted in para. 2 of her submissions. First, she noted that an application would be made to the Supreme Court for leave to appeal the decision of this Court to “correct the erroneous interpretation of rule 9 of Order 27 … given by the Court of Appeal. This is a sheer disgrace for the Court of Appeal to deliver such a misleading judgment, leaving behind legal mess.” The appellant is, of course, entitled to make an application to the Supreme Court but, at this point, that does not affect the disposition by this Court of the issue as to which party should bear the costs of the unsuccessful appeal taken by the appellant to this Court. The balance of what the appellant says is no more than baseless invective and does not provide any basis to displace the statutory presumption that arises under s. 169 of the 2015 Act.

6. Second, the appellant argued that the appeal related to the interpretation of the Rules and constituted a case of public importance. For that reason, she submitted that the Court should depart from the ordinary rule that costs follow the event. However, the fact that the appeal was concerned with the interpretation of a provision of the Rules does not make it a case of public importance and is not sufficient, in itself, to justify a departure from the starting position that costs should follow the event. The Court of Appeal hears many appeals dealing with the interpretation of the Rules and it could not plausibly be suggested that such appeals form a special category which is, in some way, insulated from the statutory presumption that the unsuccessful party should bear the costs of the appeal. Moreover, the appellant could not be said to have taken the case to advance a public concern. There is nothing in the papers to suggest that the appellant was doing anything other than seeking to advance her own private interests. The underlying claim in her statement of claim makes that very clear. It is pleaded as a straightforward claim for damages for negligence. For all of those reasons, I reject the second argument advanced by the appellant in her written submissions.

7. Third, the appellant argued that she should not have to bear the burden of the respondent’s costs in circumstances where she claims (a) that the respondent violated the Rules, (b) the judge misinterpreted or misunderstood the Rules, (c) there was an “explicit cover-up by the Court of Appeal for the violation of the rules by the Courts Service of Ireland which should be leading example of complying with same” and (d) there was “explicit cover up by the Court of Appeal for the High Court Judge who failed to fully and correctly apply Rule 9 of Order 27 of the Rules of Superior Courts in within proceedings.” It is true that the respondent failed to deliver its defence within the prescribed time. That factor may have been very relevant to the issue of costs in the High Court. However, it is of no relevance to the appeal. The appellant chose to challenge the High Court decision on appeal. It is the costs of the appeal which are in issue here. She failed in her appeal. That failure engages the provisions of s. 169 of the 2015 Act, and the burden lies squarely on the appellant to rebut the presumption that she should bear the costs of her failed appeal.

8. The remainder of what is alleged by the appellant in her third argument is manifestly unfounded, completely unjustified and utterly unacceptable. The appellant does not put forward any basis for such egregious allegations. The truth is that the appellant has no basis to suggest a “cover up”. The judgment given by the High Court was logical and rational and was, very plainly, arrived at after a careful consideration of all of the circumstances without fear or favour to either side. All of the relevant facts were identified and addressed. I believe that the same can be said for the judgment of this Court. Nothing was covered up. Judges are entirely independent in the exercise of their functions under the Constitution. Before entering into office, they have made solemn declarations to execute their judicial duties without fear or favour, affection or ill-will towards anyone and to uphold the Constitution and the laws. Judges are independent office holders. They are not employees of the Courts Service. Their remuneration is not paid by the Courts Service. They do not treat the Courts Service any differently to other litigants. The suggestion that judges would be engaged, in some way, in a “cover-up” on behalf of the Courts Service is both absurd and scandalous.

9. The next argument made by the appellant is that two judgments of the Supreme Court (which were addressed in this Court’s judgment on the appellant’s appeal) are “invalid” because they were made “on foot of … invalid Supreme Court Determinations granting leave to appeal … due to the fact that they were signed by only one judge”. The judgments of the Supreme Court in question are those in Barlow v. Minister for Communications [2025] IESC 14 and Kirwan v. Connors [2025] IESC 21. I can see no basis for such a far-reaching and surprising allegation. Furthermore, those decisions are binding on this Court and must be applied by this Court. For that reason, this allegation is wholly irrelevant to the issue of the costs of an appeal before this Court and provides no basis for displacing the statutory presumption that arises under s. 169 of the 2015 Act.

10. The final argument raised by the appellant in an attempt to rebut the effect of s. 169 involves a contention that there should be equality of arms between the parties and that this can only be achieved if the same principles are applied to both parties equally in respect of costs. On that basis, the appellant submitted that any award of costs to the respondent should be limited to the expenses which the appellant, as a legally unrepresented party, could have recovered in the event that she had succeeded in her appeal. However, in the very same paragraph, she made what appears to be a somewhat contradictory argument in that she submitted that the approach taken by the Supreme Court in Dawson v. Irish Brokers Association [2002] IESC 36, [2002] 2 ILRM 210 is outdated and erroneous. In that case, the Supreme Court held that, where the beneficiary of a costs order is a legally unrepresented litigant, the recoverable costs are limited to expenses and outlay.

11. I reject the first part of the appellant’s argument. There is nothing in ss. 168 and 169 of the 2015 Act or in the case law on costs that suggests that a court could restrict the costs payable by legally unrepresented litigants in the manner suggested by the appellant. The effect of this far-reaching argument would be that parties who are sued by unrepresented litigants would have no ability to recover the majority of their costs even where, as in this case, the unrepresented party has exposed them to significant additional costs by appealing a decision on grounds which are found to be without merit. In my view, no sufficient argument has been advanced to suggest that this is permissible under the 2015 Act.

12. It is unnecessary to deal with the argument in relation to Dawson v. Irish Brokers Association. It would only be relevant if the appellant had been successful in her appeal and was seeking costs on that basis. For completeness, the recent decision of the Court of Appeal in Corcoran v. Permanent TSB plc [2026] IECA 116 should be noted. While the issue is not relevant in this case, that judgment considers the effect of the 2015 Act on the pre-existing principles applicable to costs sought by legally unrepresented parties.

13. In circumstances where none of the appellant’s arguments is sufficient to displace the statutory presumption that arises under s. 169 of the 2015 Act, it follows that an order should be made directing the appellant to pay the respondent’s costs of the appeal, such costs to be adjudicated in default of agreement.

14. At the end of her submissions, the appellant submitted that a stay should be imposed on any costs order pending the determination of an application for leave to appeal to the Supreme Court. No case has been made addressing the basis on which the appellant claims to be entitled to a stay. Nonetheless, in circumstances where the process of adjudicating costs is likely to take some time, I believe that no significant prejudice will be suffered by the respondent if a stay is placed on execution of the order for costs made against the appellant. In those circumstances, execution on foot of the order for costs should be stayed for a period of 21 days from the date of perfection of the Order made by the Court on foot of this judgment, and, in the event that the appellant lodges an application for leave to appeal to the Supreme Court within time, such stay to continue until the date of determination by the Supreme Court of the application for leave to appeal.

15. Both Binchy and Meenan JJ. agree with this judgment and with the orders proposed above.