High Court refuses HSE review of CLCA costs determination, upholding CLCA's methodology and allowances as reasonable.

APPROVED

AN ARD-CHÚIRT

THE HIGH COURT

[2026] IEHC 283

Record No. 2019/7817P

BETWEEN/

BC (A MINOR) SUING BY HIS MOTHER AND NEXT FRIEND AC

PLAINTIFF/RESPONDENT

-AND-

HEALTH SERVICE EXECUTIVE

DEFENDANT/APPLICANT

JUDGMENT of Mr. Justice Conleth Bradley delivered on the 1st day of May 2026 CONTENTS

INTRODUCTION................................................................................................................................. 3 Preliminary ......................................................................................................................................... 3 Background ........................................................................................................................................ 4 THE GROUNDS FOR REVIEW ........................................................................................................ 5 THE STATUTORY PROVISIONS .................................................................................................... 9 Matters to be ascertained: s. 155 of the 2015 Act ............................................................................. 9 The determination of applications ................................................................................................... 11 Review of Determination ................................................................................................................. 13 DISCUSSION AND DECISION........................................................................................................ 14 The issue between the parties .......................................................................................................... 14 Discretion and reasons..................................................................................................................... 16 Allowing a review application.......................................................................................................... 18 Methodological approach to the review jurisdiction ...................................................................... 22 Comparators: residual sense-check................................................................................................. 26 General observations........................................................................................................................ 31 Applicable threshold for intervention.............................................................................................. 31 Written Determination: 2nd October 2023 ....................................................................................... 33 Solicitors General Instructions Fee ............................................................................................... 34 Second Senior Counsel ................................................................................................................. 35 Brief Fees ...................................................................................................................................... 36 Consideration Ruling: 5th November 2024 ..................................................................................... 38 Reasons ......................................................................................................................................... 38 Comparators .................................................................................................................................. 44 Level of allowance ........................................................................................................................ 52 Exceptionality ............................................................................................................................... 52

CONCLUSION ................................................................................................................................... 56 PROPOSED ORDER ......................................................................................................................... 57 Appearances ..................................................................................................................................... 57

INTRODUCTION

Preliminary

1. This is an application by the Health Service Executive (“the HSE”) for the review of a costs adjudication carried out by the Chief Legal Costs Adjudicator (“the CLCA”) pursuant to the provisions of the Legal Services Regulation Act 2015, as amended (“the 2015 Act”).

2. The background to this review application relates to an underlying action which involved a conditional settlement (made without admission of liability and which provided inter alia for payment to the plaintiff of 50% of damages when assessed or agreed with payment on account in the sum of €4 million) of an action which had commenced in 2019, comprising a medical negligence claim in respect of alleged catastrophic birth injuries which was ruled by the High Court (Coffey J.) on 23rd June 2022.

3. In chronological terms, the action was the subject of: (i) an unsuccessful mediation on 28th April 2022, approximately 5 weeks prior to the initial trial date; (ii) a listing for trial on 6th May 2022 which had to be adjourned due to the trial judge’s potential conflict of interest; (iii) a reassigned trial date for the 21st June 2022; and (iv) ultimately, the case was comprised on terms on 23rd June 2022 and ruled on an interim basis.

4. As mentioned, the immediate context for this application is in relation to the associated costs order which provided for the adjudication of costs.

5. Section 155(2) of the 2015 Act provides that where the CLCA is adjudicating an application under Part 10 (Legal Costs), a reference to a Legal Costs Adjudicator (“LCA”) shall be construed as including the Chief Legal Costs Adjudicator. As it happens, one of the relevant decisions in this case was made when the CLCA was an LCA, the other was when he was appointed as the CLCA. Accordingly, the terms CLCA and LCA are used interchangeably in this judgment (and are also referred to as “CLCA/LCA”).

Background

6. The plaintiff’s Bill of Costs was set down for adjudication on 3rd July 2023 and the LCA gave his ‘determination’ (or Adjudication report) on 2nd October 2023.

7. Both parties filed Notices of Application for Consideration pursuant to s. 160 of the 2015 Act.

8. Prior to the delivery of the Consideration, the LCA was appointed as the CLCA.

9. After receipt of written submissions and an oral hearing, the CLCA delivered his report on the Consideration on 5th November 2024 and upheld the allowances made in his earlier determination.

10. The HSE filed this Notice of Review on 26th November 2024.

11. It is brought pursuant to s. 161 of the 2015 Act and O. 99, r. 38 of the Rules of the Superior Courts 1986, as amended (“the RSC 1986”) and relates to the determination and the Consideration by the CLCA made respectively on 2nd October 2023 and 5th November 2024 in respect of three items scheduled to the Notice of Review dated 25th November 2024: first, the Solicitors Instruction Fee (which comprises four items A.1.12, B.1.112, C.1.11 and D.1.7); second, the Brief Fee of Senior Counsel (Item C.2.4); and third, the Brief Fee of Junior Counsel (Item C.2.7).

12. In addition, the HSE seeks an order pursuant to s. 161(4)(b)(ii) of the 2015 Act from the court in substitution of the CLCA/LCA’s orders or, in the alternative, an order remitting the matter to a different LCA for determination in accordance with this judgment.

13. The HSE’s application is grounded on the Affidavit of Ruth Finnerty Solicitor sworn on 25th November 2024 and the exhibits to that Affidavit.

14. The Bill of Costs originally furnished on behalf of the Plaintiff to the HSE in the medical negligence action was in the sum of €1,688,436.59. The Affidavit of Ms. Finnerty in this regard exhibits a copy of this detailed Bill of Costs, which runs from page 338 to page 505.

THE GROUNDS FOR REVIEW

15. As stated, the focus of this review centres on that part of the costs adjudication by the CLCA/LCA relating to the Solicitor’s Instruction Fee and the brief fees of Senior Counsel and Junior Counsel. The fees claimed for a second Senior Counsel were disallowed by the CLCA/LCA in his determination and this disallowance was subsequently upheld by him in the Consideration.

16. In summary, it is contended by the HSE that the allowances made by the CLCA/LCA amount to errors which have led to an injustice to the HSE within the meaning of s. 161 of the 2015 Act and, therefore, the intervention of the High Court is warranted.

17. Insofar as the Solicitors General Instruction Fee is concerned, it is submitted on behalf of the HSE that whilst the underlying action would have always attracted a very significant instructions fee as it comes within the category of complex, high value medical negligence cases involving catastrophic birth injuries, nonetheless the work of the solicitors could not be regarded as unique or exceptional, whereas it is contended that the allowances made in respect of this work by the CLCA were exceptional in the sense of being excessive.

18. In this regard, the HSE, at para. 10 of its written legal submissions, states that it did not take serious issue with the necessity for the work that was undertaken and as detailed in the Bill of Costs submitted or the identification of the factors by the Plaintiff/Respondent pursuant to Schedule 1 of 2015 Act.

19. Further, the HSE accepted that in the written determination dated 2nd October 2023 and the Consideration dated 5th November 2024, the CLCA/LCA had reviewed the files of the solicitors and had engaged with the provisions of inter alia s. 155, Schedule 1 and s. 157 of the 2015 Act with regard to his approach.

20. Whilst there was general agreement between the parties in relation to the complexity and difficulty of the case, including in relation to liability and causation and the significant documentary burden which demanded specialist knowledge and expertise, the HSE states that it takes serious issue with the allowances made by the CLCA/LCA and the numerical value which he assigned to the work done. As just stated, whereas the HSE accepted that the underlying action would always have attracted a very significant instructions fee as it came within the category of complex and high value catastrophic birth injuries cases, it contends that the work of the solicitors could not be regarded as unique or exceptional, whereas the allowances made by the CLCA/LCA in respect of this work in this case were unique and exceptional in their excessiveness. It is further argued on behalf of the HSE that the allowances suggested by the CLCA/LCA were inconsistent with the comparators furnished and that ultimately the CLCA/LCA overestimated and overstated the novelty and complexity of the underlying action.

21. By the Rules of the Superior Courts (Costs) 2019 (S.I. No. 584 of 2019) which came into operation on 3rd December 2019, the changes included a detailed schedule covering a range of allowable charges where “if no amount is stated, the amount of the charge is at the discretion of the LCA unless otherwise provided” for items divided into the following time periods : (A) Before commencement of proceedings; (B) From commencement to trial/settlement date; (C) Costs incurred during the course of trial/settlement and up to determination of proceedings; (D) Costs incurred subsequent to trial; Miscellaneous matters.

22. The Solicitor’s Instruction Fee was divided into these four parts – (A),(B),(C) and (D) as provided above.

23. The LCA allowed a total combined fee of €520,000 (i.e., the total of items A.1.12 (€60,000 allowed), B.1.112 (€375,000 allowed), C.1.11 (€55,000 allowed), D.1.7 (€30,000 allowed).

24. The HSE submits that a more appropriate Instructions Fee would have been €375,000 (and a pro rata division of categories as follows: A.1.12 (€40,000 - HSE proposal), B.1.112 (€290,000

- HSE proposal), C.1.11 (€25,000 - HSE proposal), D.1.7 (€20,000 - HSE proposal).

25. The Plaintiff’s initial claim was for a total of €703,000 (A.1.12 (€65,000 claimed), B.1.112 (€505,000 claimed), C.1.11 (€75,000 claimed), D.1.7 (€58,000 claimed)).

26. The HSE contends that: (a) in contrast to certain other catastrophic birth injury cases, this was not a case where the CLCA/LCA found that the briefing of two senior counsel was necessary;

(b) insofar as complexity and novelty was concerned, it stated that it was not unusual in medical negligence cases for there to be a serious dispute on liability and that issues such as breach of duty and causation were often vigorously contested; (c) it was the junior counsel for the plaintiff who had identified the pivotal and key medical expert witness, whose evidence was of paramount importance to the progression of the case, rather than the plaintiff’s solicitor; (d) in terms of causation and causative links and the reference to ‘test case’, it was contended that the CLCA/LCA attached too much weight to what he considered to be the novelty aspect of the case (and that in this context the CLCA/LCA had been referred inter alia to the comparator of CT v Coombe Hospital); (e) there was no specific plea by the HSE that the plaintiff’s condition had a genetic cause; (f) work and witnesses in relation to quantum were unexceptional; (g) it was stated that modular or split trials were increasingly common in medical negligence cases;

(h) there was not a distinguishing feature in this case and that all plaintiffs, in claims with catastrophic birth injuries, have complex and challenging care needs; (i) section D was omitted entirely by the CLCA in his Consideration Ruling and it is submitted that the Defendant’s proposal of €20,000 met the work carried out and the time and labour involved.

27. It is further submitted on behalf of the HSE that the allowances made by the CLCA/LCA in respect of the brief fees of Senior Counsel in the sum of €95,000 and Junior Counsel in the sum of €65,000 were excessive and unreasonable on a party and party basis and that the work carried out by counsel on the medical and legal issues arising was not so extensive, complex or novel such as to warrant these fees.

28. It was argued that having regard to the factors outlined in Schedule 1 of the 2015 Act, a more appropriate level of brief fee for Senior Counsel and Junior Counsel would be in the sum €75,000 and €50,000 respectively. The Plaintiff’s initial claim for the Senior Counsel Brief Fee (C.2.7) was for €175,000 and for the Junior Counsel Brief Fee (C.2.4) was for €116,666.66.

THE STATUTORY PROVISIONS

Matters to be ascertained: s. 155 of the 2015 Act

29. Section 155 of the 2015 Act refers to matters which are to be ascertained in the course of the adjudication of costs.

30. Section 155(1) of the 2015 Act provides that the principles relating to legal costs in Schedule 1 of the 2015 Act shall apply to the adjudication of a bill of costs by an LCA.

31. Schedule 1 of the 2015 Act refers to the ‘Principles relating to Legal Costs’ and provides as follows: “(1) A Legal Costs Adjudicator shall apply the following principles in adjudicating on a bill of costs pursuant to an application pursuant to [s. 154 of the 2015 Act]:

(a) that the costs have been reasonably incurred, and

(b) that the costs are reasonable in amount.

(2) In determining whether the costs are reasonable in amount a Legal Costs Adjudicator shall consider each of the following matters, where applicable:

(a) the complexity and novelty of the issues involved in the legal work;

(b) the skill or specialised knowledge relevant to the matter which the legal practitioner has applied to the matter;

(c) the time and labour that the legal practitioner has reasonably expended on the matter;

(d) the urgency attached to the matter by the client and whether this requires or required the legal practitioner to give priority to that matter over other matters;

(e) the place and circumstances in which the matter was transacted;

(f) the number, importance and complexity of the documents that the legal practitioner was required to draft, prepare or examine;

(g) where money, property or an interest in property is involved, the amount of the money, or the value of the property or the interest in the property concerned;

(h) whether or not there is an agreement to limit the liability of the legal practitioner pursuant to s.48 [of the 2015 Act];

(i) whether or not the legal practitioner necessarily undertook research or investigative work and, if so, the timescale within which such work was required to be completed;

(j) the use and costs of expert witnesses or other expertise engaged by the legal practitioner and whether such costs were necessary and reasonable.”

32. Section 155(3) of the 2015 Act provides that in determining an application for the adjudication of legal costs, the LCA shall, to the extent which he or she considers it necessary to do so, consider and have regard to the entire case or matter to which the adjudication relates and the context in which the costs arise.

33. Section 155(6) of the 2015 Act provides that in the application of s. 155(3) of the 2015 Act to an adjudication relating to a bill of costs as between a legal practitioner and his or her client, the LCA shall have regard to an agreement (if any) between the legal practitioner and the client in relation to the matter concerned, made under s.151 of the 2015 Act.

34. Section 155(4) of the 2015 Act provides that “[i]n particular, the LCA shall, as respects a matter or item the subject of the application–(a) verify that the matter or item represents work that was actually done (b) determine whether or not in the circumstances it was appropriate that a charge be made for the work concerned or the disbursement concerned (c) determine what a fair and reasonable charge for that work or disbursement would be in the circumstances, and (d) determine whether or not the costs relating to the matter or item concerned were reasonably incurred.”

35. Section 155(5) of the 2015 Act provides that “[i]n applying s. 155(4), the LCA shall, so far as reasonably practicable, ascertain, in relation to work (including work to which a disbursement relates) (a) the nature, extent and value of the work, (b) who carried out the work, and (c) the time taken to carry out the work.”

36. Section 156 of the 2015 Act provides for the powers of an LCA and inter alia includes matters such as the inspection of documents and, where there is an oral hearing, the summoning and examination of witnesses and referring matters to mediation or another informal resolution process.

The determination of applications

37. Section 157 of the 2015 Act provides for the determination of applications.

38. Section 157(1) provides that the LCA, having considered an application in accordance with section 155 of the 2015 Act, shall make a determination in respect of that application and s. 157(2) of the 2015 Act provides that a determination shall, as soon as practicable after it is made, be furnished to the parties to the adjudication.

39. Section 158 of the 2015 Act addresses the effect of a determination, with s. 158(1) of the 2015 Act providing that “subject to section 160, the determination of a [LCA] is final and shall take effect 20 days after it is furnished under section 157(2) to the parties to the adjudication.”

40. Section 159(1) of the 2015 Act provides that an LCA may, whether or not at the request of a party to an application for adjudication of legal costs, refer a question of law arising in the application to the High Court for its opinion.

41. Section 160(1) of the 2015 Act provides that “where a party to an adjudication is dissatisfied with a decision of a LCA under section 157 to confirm a charge, not to confirm a charge or to determine a different amount to be charged in respect of a matter or item the subject of the adjudication, he or she may, within 14 days of the date on which the determination is furnished to him or her under s. 157(2), apply to the LCA for the consideration of the decision and the making of a determination under this section.”

42. Section 160(4) of the 2015 Act provides that for the purposes of an application under section 160(1), the LCA shall reconsider and review his determination having regard to the matters or items specified under s. 160(2)(a), and ss. 155 to 158 shall apply in relation to such a consideration, which amounts to a reconsideration of everything again. Once that is done, s. 160(5) of the 2015 Act provides that the LCA, having considered an application under this section may decide: (a) not to vary his or her determination; or (b) to make a new determination, and the determination referred to in paragraph (a) or (b) shall, subject to s. 161, take effect immediately. Section 160(6) of the 2015 Act provides that the functions of an LCA in relation to an application under s. 160 shall, insofar as practicable, be performed by the LCA who made the determination to which the application relates.

Review of Determination

43. The provision which is invoked in this application is s. 161 of the 2015 Act.

44. Section 161 provides for ‘the review’ by the High Court of a determination of an LCA as follows: “(1) A party to an adjudication who has made an application under s.160 may, not later than 21 days after the date on which the LCA has made his or her determination under s. 160(5), apply to the High Court for a review of the determination concerned.

(2) A review under this section shall be made by motion on notice to all other parties to the adjudication and the CLCA.

(3) The court shall hear and determine the review on the evidence that was tendered to the LCA unless the court orders that other evidence be submitted.

(4) The court shall, having heard the review under subsection (1) —

(a) confirm the determination of the LCA, or

(b) allow the review and—

(i) remit the matter to the LCA to determine the adjudication in accordance with the decision of the court, or

(ii) substitute its own determination for that of the LCA.

(5) The High Court shall allow a review under subsection (4)(b) only where it is satisfied that the LCA has, in his or her determination, erred as to the amount of the allowance or disallowance so that the determination is unjust.

(6) In this section “court” means—

(a) if the adjudication the subject of the review is in relation to party and party costs, the court that heard the proceedings to which those costs relate, and

(b) in any other case, the High Court.”

DISCUSSION AND DECISION

The issue between the parties

45. In this application, the HSE has not taken issue with the work that was in fact carried out in the underlying action.

46. That said, it is pointed out that it would be incorrect to characterise the position of the HSE as having raised no issues in relation to the application of Schedule 1 of the 2015 Act in the context of the matters raised, including, for example, the Solicitors General Instructions Fee.

47. In this regard, reference is made to the submission on behalf of the HSE that the period of time in “(A) Before commencement of proceedings” was unusually long, during which it was argued there were significant periods of inactivity, yet, it is submitted, this resulted in a greater than normal allowance being made by the CLCA/LCA under that section.

48. The essence of the complaint made by the HSE in this case comes down to the contention that the CLCA/LCA erred in overstating the complexity and novelty of the underlying action in his approach to the adjudication of the Solicitors General Instructions Fee and counsel’s brief fees and failed to explain how he arrived at the figures or numbers which he assigned to the allowances for these items which gives rise to an injustice to the HSE because of their excessiveness. Put simply, it is contended on behalf of the HSE that the CLCA/LCA has not explained the basis for the particular allowances in relation to these items and that he is obliged to fill in the ‘gap’ between conforming with the statutory methodology and the identification of a particular number or figure.

49. The broad spectrum of matters which the CLCA/LCA can consider are inter alia set out in s. 155, Schedule 1 and s. 157 of the 2015 Act.

50. Earlier in this judgment, the principles relating to legal costs in Schedule 1 were referred to.

51. Further, s. 155(3) of the 2015 Act provides that in determining an application for the adjudication of legal costs, the CLCA/LCA shall, to the extent which he or she considers it necessary to do so, consider and have regard to the entire case or matter to which the adjudication relates and the context in which the costs arise. The point was made on behalf of the plaintiff that in contrast to the application for review before me, the documents which were before the CLCA/LCA included approximately twenty-three bankers boxes comprising inter alia pleadings, particulars, reports, relevant literature, correspondence, medical records and miscellaneous documents and memoranda.

52. Thus, leaving aside the question of a second senior counsel, s. 155(4) of the 2015 Act requires that the CLCA/LCA shall – in relation to a matter or item the subject of the application – (a) verify that the matter or item represents work that was actually done, (b) determine whether or not in the circumstances it was appropriate that a charge be made for the work or disbursement concerned, (c) determine what a fair and reasonable charge for that work or disbursement would be in the circumstances, and (d) determine whether or not the costs relating to the matter or item concerned were reasonably incurred. There was no suggestion in this case that any element of the work which was done should not have been done.

53. In this case, therefore, it is common case between the parties, aside from the question of a brief fee for a second Senior Counsel, that the work which was carried out in relation to which fees were submitted was in fact done.

54. Section 155(5) of the 2015 Act provides that in applying s. 155(4) of the 2015 Act, the CLCA/LCA shall, so far as reasonably practicable, ascertain, in relation to work (including work to which a disbursement relates): (a) the nature, extent and value of the work; (b) who carried out the work; and (c) the time taken to carry out the work.

Discretion and reasons

55. Generally, in relation to the determination of costs applications, s. 157(3) of the 2015 Act provides that (subject to the other provisions of s. 157 and the principles relating to legal costs specified in Schedule 1), the CLCA/LCA shall confirm the charge in respect of an item of legal costs the subject of the application if, having regard to the matters that he or she considered and ascertained under s. 155 of the 2015 Act, he or she considers that (a) charging in respect of the item is fair and reasonable in the circumstances, and (b) the amount charged in the bill of costs in respect of that item is fair and reasonable in the circumstances.

56. The wide legislative discretion afforded to the CLCA/LCA is apparent in s. 157(4) of the 2015 Act, which provides that the CLCA/LCA shall, if he or she determines that it is fair and reasonable to charge an amount in respect of an item but that the amount of the charge in respect of the item is not fair and reasonable, determine a different amount to be charged in respect of that item.

57. The statutory provision for the CLCA/LCA to give reasons is premised on s. 157(8) and s. 157(9) of the 2015 Act and the conditional nature of this requirement in certain circumstances is also evident in the Register of determinations which is set out at s. 140 of the 2015 Act (see, for example, s. 140(3) and s. 140(5) of the 2015 Act where ‘reasons’ are concerned).

58. Section 157(8) provides that the CLCA/LCA, having made a determination, shall prepare a report under s. 157(9) where he or she considers it to be in the public interest, or upon request by any party to the adjudication, made not later than 14 days after the making of the determination.

59. Section 157(9) provides that a report referred to in s. 157(8) shall set out the matters or items the subject of the adjudication and a brief outline of the background to the provision of the legal services concerned and the principal issues relating to the context of the provision of those services and (a) specify the work involved relating to the matters or items the subject of the adjudication which was considered in reaching the determination, (b) specify the various stages of the legal services and the stage of the legal process at which such work was carried out by reference to distinct aspects of the course of the work, (c) set out a summary of the written or oral submissions made by or on behalf of the parties to the adjudication, and (d) give reasons for his or her determination.

60. In C.D. v The Minister for Health and Children & Ors [2008] IEHC 299 (“CD”), the High Court (Herbert J.), at paras 56 and 57 of his judgment, inter alia observed that while it is necessary for the Taxing Master to give reasons for his or her decisions, “it was neither necessary nor desirable that this should take the form of a lengthy dissertation or legal discourse” and that it should be possible for the paying party and for the High Court on review “quickly and efficiently to identify at a glance the item of costs claimed, whether it has been allowed or disallowed and the reason or reasons why.”

61. Herbert J. added that it was not necessary for the Taxing Master to provide, nor was it desirable that the High Court on a review of taxation should have to consider “lengthy opinions referring to evidence given and submissions made before the Taxing Master and, citing and analysing numerous legal authorities” and that “[t]he ideal Report would be in the form of a Commentary, with the item of costs in issue appearing in one column of the text and the ruling of the Taxing Master in the opposite column of the text, but this might not always be achievable in practice.”

62. The reasons ground raised by the HSE in this application for review is addressed later in this judgment.

Allowing a review application

63. It can be observed that practically the provisions of s. 161(5) and s. 161(4) of the 2015 Act operate sequentially in reverse.

64. In terms of allowing a review application, for example, s. 161(4)(b) deals with two alternative consequences which can arise when a review is allowed, i.e., a court can either remit the matter to the LCA or substitute its own decision for that of the LCA. (In terms, s. 161(4)(b) of the 2015 Act provides that High Court shall, having heard the review under s.161(1) of the 2015 Act, allow the review and (i) remit the matter to the LCA to determine the adjudication in accordance with the decision of the court, or (ii) substitute its own determination for that of the LCA).

65. In comparison, s. 161(5) addresses the circumstances in which the High Court shall allow a review. It provides that the High Court shall allow a review under s. 161(4)(b) of the 2015 Act only where it is satisfied that the LCA has, in his or her determination, erred as to the amount of the allowance or disallowance so that the determination is unjust.

66. This is the key provision in this application for review.

67. In this regard, and in contrast to the wide-ranging remit under O. 99, r. 28 of the RSC 1986 which provided that the High Court could ‘make such order as may seem just’ in a taxation of costs review, the jurisdiction provided under s. 161(5) (and its predecessor s. 27(3) of the Courts and Court Officers Act 1995 (“the 1995 Act”), where the review of the Taxing Master was concerned) is a narrower jurisdiction and in the application before me, the HSE has the onus of demonstrating that the CLCA/LCA (i) erred as to the amount of the allowance or disallowance and (ii) if such error is demonstrated, that it has led to injustice: see Superquinn Ltd v Bray UDC (No 2) [2001] 1 I.R. 459 (“Superquinn”); the Court of Appeal in Cooper v An Bord Pleanála [2024] IECA 253 (“Cooper”), at paras 6 and 7. (Whelan J. and Pilkington J. agreed with the judgment delivered by Noonan J).

68. Where an application is made pursuant to s. 154 of the 2015 Act for the adjudication of legal costs, the CLCA/LCA is required to apply the following principles in adjudicating on a bill of costs: first, that the costs have been reasonably incurred; and second, that the costs are reasonable in amount. (Schedule 1, para. 1 of the 2015 Act).

69. In determining the second issue, i.e., whether the costs are reasonable in amount, the CLCA/LCA is required to consider any of the following matters which are applicable to the particular circumstances of the case: (a) the complexity and novelty of the issues involved in the legal work; (b) the skill or specialised knowledge relevant to the matter which the legal practitioner has applied to the matter; (c) the time and labour that the legal practitioner has reasonably expended on the matter; (d) the urgency attached to the matter by the client and whether this requires or required the legal practitioner to give priority to that matter over other matters; (e) the place and circumstances in which the matter was transacted; (f) the number, importance and complexity of the documents that the legal practitioner was required to draft, prepare or examine; (g) where money, property or an interest in property is involved, the amount of the money, or the value of the property or the interest in the property concerned; (h) whether or not there is an agreement to limit the liability of the legal practitioner pursuant to s. 48 of the 2015 Act; (i) whether or not the legal practitioner necessarily undertook research or investigative work and, if so, the timescale within which such work was required to be completed; and (j) the use and costs of expert witnesses or other expertise engaged by the legal practitioner and whether such costs were necessary and reasonable. (Schedule 1, para. 2(a) to

(j) of the 2015 Act).

70. Clearly, it is not a requirement that all of the matters at paras (a) to (j) will apply to any given situation.

71. The Oireachtas chose to legislate for the costs determination process in the 1995 Act and then again, 20 years later, in the 2015 Act.

72. The range of issues which the CLCA/LCA can consider pursuant to s. 155, Schedule 1 and s.

157 of the 2015 Act is similar to that provided for in O. 99, r. 37(22)(ii) of the RSC 1986 (S.I. No.15/1986-The Rules of the Superior Courts).

73. Further, generally, the following observations of the Supreme Court (Laffoy J.) at para. 118 in Sheehan (an infant) v Corr [2017] IESC 44, [2017] 3 I.R. 252 (“Sheehan”), which described the costs regime prior to the 2015 Act reflects the situation in relation to a solicitor’s instruction fee notwithstanding the legislative changes in the 2015 Act: “(118) In the context of the discussion on the undisputed lack of reality of the costs ascribed to the costed items in Appendix W, I observed that the amendment of Order 99 and, in particular, Appendix W, is long overdue. Moreover, that is not the only outdated aspect of the Rules, as reflected in Appendix W. It is not satisfactory that the paying party who receives a bill of costs, in relation to the largest charge in the bill, the solicitor’s instructions fee, is presented with pages and pages of narrative, at the end of which is a single omnibus charge for all of the work as set out. It is because of the obvious deficiencies in the current process that all those involved in the taxation in this case, and in the subsequent review process in the courts, have had to put such effort into their involvement, with a view to producing a system which is more scientific, rigorous and, ultimately, better value for money. However, it is for the legislature to produce such a system”.

74. The contention by the HSE in this application is not that the underlying proceedings were not complex, but rather that the CLCA/LCA overstated the complexity and novelty of the proceedings and then placed too much reliance on this overstatement in the assignment of allowances for the Solicitors General Instructions Fee and counsels’ brief fees.

Methodological approach to the review jurisdiction

75. The adjudication of legal costs under the 2015 Act, whilst more particularised, is not mathematically formulaic or scientific.

76. As just mentioned, there is, for example, a similarity between the provisions set out in Schedule 1, para. 2(a) to (j) of the 2015 Act (referred to above) and the following general regulations which had applied to all taxations listed in O. 99, r. 37 of the RSC 1986 (O. 99, r. 37(22)(ii) of the RSC 1986 (S.I. No.15/1986 - The Rules of the Superior Courts)) where in exercising his discretion in relation to any item, the (then) Taxing Master was required to have regard to all relevant circumstances, and in particular to the following matters: “(a) the complexity of the item or of the cause or matter in which it arises and the difficulty or novelty of the questions involved; (b) the skill, specialised knowledge and responsibility required of, and the time and labour expended by, the solicitor; (c) the number and importance of the documents (however brief) prepared or perused; (d) the place and circumstances in which the business involved is transacted; (e) the importance of the cause or matter to the client; (f) where money or property is involved, its amount or value; (g) any other fees and allowances payable to the solicitor in respect of other items in the same cause or matter but only where work done in relation to those items has reduced the work which would otherwise have been necessary in relation to the item in question.”

77. In ascertaining the methodological approach to be applied to the statutory review jurisdiction in this application, it is instructive to examine some of the previous case-law in the costs taxation/adjudication process and to note also the similarities which remain between the provisions of the Rules, the 1995 Act and the 2015 Act.

78. The decision of the High Court (Herbert J.) in C.D. involved an appeal against the decision of the then Taxing Master in relation to the solicitor’s general instructions fee and the taxation of a bill of costs arising from the Hepatitis-C Compensation Tribunal.

79. The costs appeal was brought pursuant to the provisions of O. 99, r. 38(3) of the RSC 1986 and s. 27(3) of the 1995 Act, which inter alia provided that the High Court may review a decision of a Taxing Master made in the exercise of his or her powers under s. 27, to allow or disallow any costs, charges, fees or expenses, provided only that the High Court was satisfied that the Taxing Master had erred as to the amount of the allowance or disallowance so that the decision of the Taxing Master was unjust.

80. In C.D., at para 56, Herbert J. stated that it was neither necessary nor desirable – and in the absence of a time-costing system it would usually be impossible – for the Taxing Master to value individual items making up a claim in a general instructions fee.

81. In addition, the importance of C.D. lies in the consideration of the approach outlined by Herbert

J. in subsequent cases.

82. In Sheehan, for example, the Supreme Court (Laffoy J.) addressed the provisions of O. 99, r. 37(18) and r. 37(22)(ii) of the RSC 1986 in the context of a party and party taxation.

83. The decision Sheehan is authority for the proposition that the relevant provisions of O. 99 of the RSC 1986 were to be construed and applied having regard to s. 27(1) and s. 27(2) of the 1995 Act: see para. 75 of the judgment in Sheehan.

84. Insofar as this application for review is concerned, Kearns P.’s reference in Superquinn at p.

480 to s. 27(1) and s. 27(2) of the 1995 Act requiring a “root and branch examination” of a bill of costs being taxed, was clarified and explained by Laffoy J. in Sheehan (at para. 124), as not involving the Taxing Master conducting an inquisitorial review and adjudication of every item in every bill. It was, rather, intended to apply only to those contentious aspects of the bill, as determined by the parties to the review, i.e., the Taxing Master was only obliged to carry out a root and branch examination of items that were actually in dispute: see also Buckley v O’Neill [2023] IECA 288 (“Buckley”) (Maurice Collins J., Haughton J. and Pilkington J.) at paras 66,

67 and 68 per Collins J.

85. In Sheehan, the Supreme Court approved the decision of Herbert J. in C.D. and held that the appropriate starting point for the Taxing Master in taxing a solicitor’s general instructions fee was to ascertain precisely what work was done by reference to the bill of costs and supporting documentation. In ascertaining the work done, the Taxing Master was obliged to have regard to the time spent on the case. This was to be followed by consideration of other relevant circumstances outlined in s. 27 of the 1995 Act and O. 99, r. 37(22)(ii) of the RSC 1986.

86. The factors to be considered are now provided for in ss. 155, 157 and Schedule 1 of the 2015 Act.

87. In addition, the review jurisdiction under the former procedure prescribed by s. 27(3) of the 1995 Act was described by the High Court (Geoghegan J.) in Bloomer v Incorporated Law Society of Ireland [2000] 1 I.R. 383 (“Bloomer”) at p. 387 as follows: “In considering whether the taxing master erred, I must see whether in arriving at his

decision he had regard or excessive regard to some factor which he either should not have had any regard to or to which he should have had much less regard. I then have to consider whether there was some significant factor to which the taxing master ought to have had regard and to which he either had no regard at all or insufficient regard. Those are examples of errors of principle in the consideration of the facts but of course the court must also consider whether the taxing master has fallen into error in either law or jurisdiction. If this court finds that the taxing master has erred in the sense described, this court then has to address the second question which is whether the taxation was unjust. In relation to any given item in the taxation which is in controversy, the justice or injustice of the

decision will be determined by the amount. If after falling into error, the taxing master in fact arrives at the correct figures or at figures within a range which it might have reasonably have been open to him to have arrived at, the court should not interfere. The decision may not be exactly the same as the decision which the court would have made but it cannot be described as an unjust decision.” (Emphasis/Bold added in this judgment).

88. Albeit in the context of the 1995 Act, the approach as outlined by Geoghegan J. in Bloomer does not envisage the CLCA/LCA adopting a precise mathematical formula when adopting the methodology prescribed in s. 161(5) of the 2015 Act.

89. In Diaz v Lohan [2023] IEHC 292, the High Court (Roberts J.) applied the approach in Sheehan (the Supreme Court (Laffoy J.)) and HM v SM [2018] IECA 396 (“HM”) (the Court of Appeal (Baker J.)) in the review carried out in that case pursuant to s. 161 the 2015 Act.

90. It can be observed that the previous practice of taxing masters appears to reflect the subsequent changes which were effected on 3rd December 2019 (referred to earlier) by Schedule 3, Appendix W: Costs in S.I. No. 584 of 2019-Rules of the Superior Courts (Costs) 2019 which made the following temporal divisions: (A) Before commencement of proceedings; (B) From commencement to trial/settlement date; (C) Costs incurred during the course of trial/settlement and up to determination of proceedings; (D) Costs incurred subsequent to trial; Miscellaneous matters.

Comparators: residual sense-check

91. In Sheehan, at paras 117 to 121, Laffoy J. made inter alia some general observations about the taxation process which applied at that time: for example, and as referred to earlier in this judgment, a “root and branch examination of the bill” (para. 98 of Superquinn) was intended to apply only to those contentious aspects of the bill (as determined by the parties to the review); having a process by which disputed costs could be adjudicated upon by an independent third party was an indispensable part of the justice system; an amended costs process was long overdue; it was unsatisfactory that the paying party receiving a bill of costs, and taking the example of solicitor’s instructions fee, was furnished with a multitude of pages of narrative culminating in a single omnibus charge for all of the work as set out; that, ultimately, such changes were a matter for the Oireachtas and legislation.

92. As matters transpired, the 2015 Act retained many of the features of the 1995 Act and certain aspects of the RSC 1986.

93. In the context of the use of ‘comparators’, at para. 119 of her judgment in Sheehan, Laffoy J. stated that as the matter was not an issue in the appeal in Sheehan, her observations were necessarily obiter. In that context, Laffoy J. observed that if used properly, the likelihood was that comparators were a valuable guide to the assessment of a fee. While fees differed in substance and in assessment, a comparison was possible if suitably adjusted having regard to changes in practice, the law and the market and that “[a]t a minimum such an exercise is a useful “sense check” and may be more easily and cheaply carried out than, say, an in-depth analysis of timesheets and such like”.

94. In this application, it is argued on behalf of the HSE that the CLCA/LCA erred in making allowances that were excessive and unreasonable on a party and party basis, having regard to the nature and extent of the work carried out by the plaintiff’s legal team, and also erred in his consideration and application of the matters prescribed in Schedule 1 of the 2015 Act when assessing and valuing the work undertaken by them.

95. Further, the HSE contend that the CLCA/LCA erred in his assessment of the comparator evidence and failed to have any, or any adequate, regard to the comparator evidence adduced by the HSE and that the allowances made by the CLCA/LCA were inconsistent with previous precedent and comparators and that the CLCA/LCA introduced, without having provided the parties with an opportunity of looking at it, issues around the consumer price index (“CPI”) and its application to old cases in assessing what their current allowance’s value might be.

96. As set out later in this judgment, in my view, the decisions of the CLCA/LCA of 2nd October 2023 and 5th November 2024 confirm that the reference to, and assessment of, comparators (and to the CPI), comprised a residual sense-check which was conducted after the CLCA/LCA had applied the statutory criteria prescribed by the 2015 Act, including inter alia ss. 155, Schedule 1 and s. 157, in determining whether the costs were reasonable in amount. It was not the case, for example, that the CLCA/LCA, in referring to comparators and the CPI, introduced extra non-statutory criteria into the methodological exercise prescribed by the 2015 Act.

97. Further, as set out above and confirmed by the Court of Appeal in Cooper, assuming, ex hypothesi, for the sake of argument that the CLCA/LCA erred, I do not consider, for the reasons set out in this judgment, that the HSE has established that such alleged (or assumed) error as to the amount of the allowance or disallowance made by the CLCA/LCA was such that the determination or Consideration made by the CLCA/LCA was ‘unjust’ as per the requirements of s. 161(5) of the 2015 Act.

98. As stated above, insofar as the requirements in ss. 154, 155, Schedule 1 and s. 157 of the 2015 Act are concerned, there is no suggestion by the HSE that any element of the work that was in fact carried out in the underlying action, should not have been done.

99. To recap, s. 155(4) of the 2015 Act states that the LCA shall, as respects a matter or item the subject of the application: (a) verify that the matter or item represents work that was actually done; (b) determine whether or not in the circumstances it was appropriate that a charge be made for the work concerned or the disbursement concerned; (c) determine what a fair and reasonable charge for that work or disbursement would be in the circumstances; and (d) determine whether or not the costs relating to the matter or item concerned were reasonably incurred. Section 155(5) of the 2015 Act states that in applying s. 155(4) of the 2015 Act the LCA shall, so far as reasonably practicable, ascertain, in relation to work (including work to which a disbursement relates): (a) the nature, extent and value of the work; (b) who carried out the work; and (c) the time taken to carry out the work.

100. Section 157 of the 2015 Act provides for the determination of applications and s. 157(3) provides that subject to the other provisions of s. 157 and the principles provided for in Schedule 1, an LCA shall confirm the charge in respect of an item of legal costs the subject of the application if, having regard to the matters that he or she considered and ascertained under s. 155, he or she considers that (a) charging in respect of the item is fair and reasonable in the circumstances, and (b) the amount charged in the bill of costs in respect of that item is fair and reasonable in the circumstances.

101. Again, in the underlying proceedings, there is no suggestion on behalf of the HSE that the work was not done. Rather, the arguments raised by the HSE inter alia relate to contending that the CLCA/LCA erred in overstating the complexity and novelty and hence the level of the fee and the amount of the allowance, particularly in relation to the Solicitors General Instruction Fee and counsels’ brief fees and failed to consider the comparator evidence adduced by the HSE. Therefore, the HSE argues that the allowances made by the CLCA/LCA were inconsistent with previous precedent and comparators and applied the CPI, without notice, to old cases in assessing what their current allowance’s value might be.

102. The decision of the Supreme Court in Sheehan (para. 48, p. 280) approved the analysis of the High Court in C.D. which stated that the correct methodology to be employed in conducting, for example, the taxation of a solicitors general instructions fee, was informed by the requirements of s. 27 of the 1995 Act and O. 99, r. 37(22)(ii) of the RSC 1986, i.e., in that example, as the Rules envisaged the solicitor’s instructions fee included in a bill of costs being an omnibus figure covering work done, there was no requirement under O. 99 of the RSC 1986 for a bill of costs to specify a professional charge, the hours worked, or the hourly rate for the solicitor performing the work in respect of each item of professional services within the general instructions fee and the Taxing Master was not obliged to put a value on each individual item.

103. This applies, by analogy, to the methodological approach adopted by the CLCA/LCA which must be informed by the provisions of the 2015 Act and in particular to s. 155, Schedule 1 and s. 157 of the 2015 Act.

104. The CLCA/LCA was not required, for example, to assign a precise figure or percentage to the issue of complexity when assessing the general instructions fee. The issue is whether or not the CLCA/LCA complied with the methodology prescribed in the 2015 Act in taking all relevant and applicable factors into account and then, after doing so, in assigning a valuation. As set out later in this judgment, the review of the determination dated 2nd October 2023 and the Consideration dated 5th November 2024 confirm that this is what in fact occurred.

105. In this case, the CLCA/LCA, after applying the statutory criteria, determined the amount of the allowance and then applied, by way of a sense-check or an evaluation of his assessment, the comparators provided and assessed where his allowance fell on the available range provided by the comparators.

General observations

106. The following general observations arise from a consideration of the case-law and the provisions of the 1995 Act, O. 99 of the RSC 1986 and the 2015 Act: (a) under the 2015 Act, the CLCA/LCA must apply the prescribed statutory methodology and in particular the provisions of s. 155, Schedule 1 and s. 157 of the 2015 Act; (b) the CLCA/LCA is required to assess the matters set out in Schedule 1 of the 2015 Act objectively and is not required to evaluate each of those matters by numerical precision or by the application of an ex ante weight to each of those matters; (c) where, for example, an item in Schedule 1 of the 2015 Act is disputed by the parties, the CLCA/LCA is required to apply a greater level of scrutiny and explanation when indicating why one side is favoured over the other; (d) ultimately, it is a matter for the Oireachtas to prescribe in legislation both the suite of factors to be considered and the level of scrutiny to be applied by the CLCA/LCA; (e) comparators used as residual sense-check are a valuable guide but are not a substitute for the methodology prescribed in the 2015 Act, including in the provisions of s. 155, Schedule 1 and s. 157 of the 2015 Act.

Applicable threshold for intervention

107. In terms of the applicable threshold for judicial intervention, s. 161 of the 2015 Act provides that the CLCA/LCA must have erred as to the amount of the allowance or disallowance so that the determination is unjust. The error can comprise an error of fact, law or principle bearing on the allowance or disallowance and what brings it within the scope of the statutory review process is that it results in the decision being unjust.

108. The ‘error’ and the ‘unjustness of the decision’ are cumulative and conjunctive requirements.

It is insufficient to establish an error of fact, or an error of law or an error of principle alone. The error must have the consequential effect of rendering the decision unjust: by analogy, see Sheehan, para. 98, p. 305; Bloomer at p.387; HM, paras. 25 to 31.

109. In HM, Baker J. explained, at para. 26 of her judgment, that for a result to be unjust, it “is more than a test that the costs are more or less than that for which either party contends and injustice must be tested in the context of an assessment of the nature of the litigation, the amount of expertise engaged, and all of the other factors that might be relevant in the case in issue. Findings of fact are not to be reversed unless a manifest error or error in approach is found”.

110. In paraphrasing and applying the threshold as explained by the High Court (Geoghegan J.) in Bloomer to this application and to the legislative regime which now applies under the 2015 Act, in considering whether the CLCA/LCA erred (in, for example, a question of fact), a court must assess whether in arriving at his decision he had regard, or excessive regard, to some factor which he either should not have had any regard to, or to which he should have had much less regard. Consideration must then be given have to whether there was some significant factor to which the CLCA/LCA ought to have had regard and to which he either had no regard at all or insufficient regard. An assessment must also be made as to whether the CLCA/LCA fell into a different type of error, including an error of law or a jurisdictional error.

111. It is only if the CLCA/LCA has erred in the sense described that consideration of the second question arises which is assessing whether the adjudication was unjust. In relation to any given item in the adjudication which is in controversy, the justice or injustice of the decision will be determined by the amount. If, for example, after falling into error, the CLCA/LCA has in fact arrived at the correct figures or at figures within a range which might have reasonably been open to him to have arrived at, a court should not interfere. A decision, in such circumstances, may not be exactly the same as the decision which a court would have made but it cannot be described as, or be deemed, an unjust decision.

112. This is the prism through which the consideration dated 5th November 2024 and the determination dated 2nd October 2023 must be viewed and which I now address.

Written Determination: 2nd October 2023

113. On 2nd October 2023, the then LCA issued a determination on the Plaintiff’s costs pursuant to the order of the High Court (Coffey J.) dated 23rd June 2022.

114. In the “Introduction” part of the determination the LCA states that he had heard the parties on 3rd July 2023 and confirms that he had “the opportunity of reviewing the entirety of the papers in the matter, including the bill of costs, the associated vouchers, the solicitors file comprising correspondence, pleadings, expert reports and all associated documentation.”

115. The LCA further noted that “at the hearing the defendant very fairly indicated that no real issue was taken with the plaintiff submissions on the work required to be undertaken as set out in the bill of costs, nor the submission on the factors to be considered by me as set out in the 2015 Act. The objections of the paying party were to the quantum of fees sought and certain specific items claimed in respect of certain of the expert witnesses as well as a principled objection to the retention of a second senior counsel by the plaintiff. Therefore, this determination will focus on the issues in dispute between the parties rather [than] setting out, in extensio, matters that the parties are in agreement on”.

116. At the outset, therefore, the LCA stated that no issue was being raised in relation to work being completed which should not have been done.

117. The LCA then sets out the “Background” and under a heading the “Plaintiff’s Submissions”, at sequential sub-paragraphs, he addresses matters under the following sub-headings: (A) Complexity and Novelty; (B) Skill and Specialised Knowledge; (C) Time and Labour; (D) Urgency; (E) Place and Circumstances; (F) Number, Importance and Complexity of Documents; (G) Value; (H) Not applicable; (I) Research and Investigative Work Carried Out and “Two Senior Counsel”.

118. The LCA then sets out a summary of the “Defendant’s Submissions”.

Solicitors General Instructions Fee

119. At p. 9 of the determination, the LCA begins his “Discussion” and once again repeats that “As the paying party, very fairly, did not take issue with the work as outlined in the bill of costs nor the identification of the relevant factors to be considered under [Schedule 1] of the 2015 Act, I do not intend to enter into a prolonged consideration of same” and reiterated that he had “read the correspondence file in its entirety together with the pleadings and all the expert reports.”

120. Under the heading “Allowances”, the LCA confirmed “that pursuant to sections 155 and 157 of the 2015 Act, I have verified that the items in the bill of costs represent work that was carried out and that I am satisfied it was appropriate that a charge be made for those items.”

121. The LCA then sets out various separate sub-headings Sections A to D, and considers that each fee under each sub-heading that the respective fees charged were “fair and reasonable”. In Section A, for example, the LCA considers issues such as causation, the nature of the action, the involvement of a named medical expert which made the issuing of proceedings possible, stating that the work did not simply involve gathering in records and obtaining positive reports from appropriate experts as was frequently the case in a medical negligence action but that “[t]his case had the additional issue of whether the plaintiff was even in a position to bring proceedings”.

Second Senior Counsel

122. The LCA then addresses in a comprehensive manner the question as to whether it was reasonable for a second Senior Counsel to be briefed. The LCA examined the file in a chronological and contextual manner, describing in detail the engagement as between the plaintiff’s legal team. The LCA inter alia observed that the advice from senior counsel on 25th November 2021 underlined that one senior counsel should be briefed. The initial hearing on 6th May 2022, which as it happens, was adjourned due to the possible conflict of the trial judge, had been prepared on the basis of the instruction of one senior counsel. Up until that point, when the issue of the retention of a second senior was raised by the solicitor, the approach and advice was to retain one senior counsel only.

123. After that adjourned hearing on 6th May 2022, senior counsel for the plaintiff wrote to the solicitor on 18th May 2022 regarding the necessity for a second senior counsel and it was inter alia noted that the case was likely to take 6 weeks, was extremely complex in many respects and that the defendant had instructed two senior counsel. The LCA refers to the respective roles played by each of the senior counsel and referred to the provisions in s. 138 (definition of disbursement), s. 155, Schedule 1 and s. 157 of the 2015 Act and posed the question as follows on p. 14 of his determination: “[t]aken together those provisions require me to consider, in this case, whether the briefing of a second Senior Counsel was: necessary and reasonable (s.138); Appropriate in the circumstances (s.155(4); fair and reasonable in the circumstances (s.157(3); and reasonably incurred (Schedule 1)”.

124. The LCA stated that the starting point must be the views of the lead senior counsel, when the issue had been initially raised by the solicitor that only one senior counsel was to be briefed, and the LCA further noted that the lead senior had “conducted the mediation without a second senior and was prepared to run the case on the original hearing date – the 6th May [2022] – and would have done so, had a judge been available on that date.”

125. The LCA also stated that the factors in regard to complexity and length had been equally present before and after 6th May 2022. He considered, for example, that the fact that the State had briefed two senior counsel was a relevant factor to be considered but that it was not determinative. After weighing a number of factors, including that his review of the file indicated that the issue was a live one throughout the proceedings, the LCA concluded that there was not a satisfactory explanation as to why a second senior was deemed not necessary for the hearing of the matter on 6th May 2022 but was deemed necessary thereafter. He concluded that it was not necessary to brief a second senior counsel.

Brief Fees

126. At p. 16 of his determination, the LCA deals with the issue of counsels’ brief fees. He begins by stating that the matters out in Schedule 1 of the 2015 Act applied equally to counsels’ fees as to the solicitors instructions fee. He notes that senior and junior counsel were closely and heavily involved in the matter throughout. He reiterates the involvement of the lead senior counsel for the Plaintiff and makes the distinction between a brief fee and a refresher stating that a refresher was “intended to cover the additional work carried out by counsel after the first day of the trial of an action” and a brief fee “usually deals with all work in preparation for a trial and includes the first day at hearing.”

127. In this case, the LCA allowed an overall or global fee to senior and junior counsel that covered all the work carried out including the settlement discussions and stated that the distinction between a brief fee and a refresher, on the facts of this action, was “essentially a matter of form over substance.” As set out at the beginning of this judgment, the LCA determined that a fair and reasonable fee for senior counsel was €95,000 and a fair and reasonable fee for junior counsel was €65,000.

128. The factors considered by the LCA in the determination dated 2nd October 2023, as summarised above, included inter alia: (a) the close and heavy involvement of senior and junior counsel throughout; (b) the complexity and length of the underlying action; (c) the fact that the matter was set down for hearing but was adjourned due to a potential conflict of the trial judge; (d) the negotiations; and (e) a mediation that did not succeed. In his decision, the LCA had regard to and applied the provisions of the 2015 Act, including s. 155, Schedule 1 and s. 157. As set out, I do not consider that there was any error of fact, law or principle in the approach adopted by the LCA in this determination. Whilst the second limb of review does not arise, I have also considered it on the alternative assumption that there was an error and I do not consider that the allowances made by the CLC in this determination were unjust. The LCA provided a reasoned determination which also facilitated the parties’ respective applications for a Consideration, which I address in the next section of this judgment.

Consideration Ruling: 5th November 2024

129. After the delivery of the determination on 2nd October 2023, the plaintiff had applied for a Consideration of the determination by notice dated 17th November 2023 in relation to three items of the solicitor’s instructions fees and nine items of counsel’s brief fees and refresher fees. The defendant had also applied for a consideration of the determination by notice dated 23rd November 2023 in relation to four items of the solicitor’s instruction fees and two items of the brief fees for junior and senior counsel. These were set out in tabular form in the written Consideration.

130. The (now) CLCA delivered a written Consideration on 5th November 2024, pointing out that it should be read in conjunction with the determination dated 2nd October 2023.

Reasons

131. On behalf of the HSE, it is argued that the CLCA/LCA erred in failing to give adequate reasons for his allowances. It is submitted that there is a gap or disconnect between the CLCA/LCA’s assessment of the work carried out and his consideration of the Schedule 1 factors, on the one hand, and the allowances that he ultimately assigned, on the other hand. It is contended that there is an absence of any proper explanation as to how the CLCA/LCA arrived at his allowances and that this undermined the ability of the HSE to make effective submissions on the Consideration in addition to this statutory review.

132. The seminal authority on the adequacy of reasons is the decision of Clarke C.J. in Connelly v An Bord Pleanála [2018] IESC 31; [2021] 2 I.R. 752 (“Connelly”).

133. At paragraph 84 of his judgment, Clarke C.J. stated that there was “a middle ground between the sort of broad discursive consideration which might be found in the judgment of a court, on the one hand, and an entirely perfunctory statement that, having regard to a series of factors taken into account, the decision goes one way or the other. There is at least an obligation on the part of decision-makers to move into that middle ground, although precisely how far will depend on the nature of the questions which the decision-maker had to answer before coming to a conclusion.”

134. Earlier in Connelly, Clarke C.J. had set out the rationale for the duty to provide reasons and referred to the attenuated requirement which applies when someone has participated and was engaged in a process, as follows: “(7.4) In this context it is also worth returning to the decision of Fennelly J. in Mallak. As noted above, at para. 66 of his judgment, Fennelly J. stated: “The most obvious means of achieving fairness is for reasons to accompany the

decision. However, it is not a matter of complying with a formal rule: the underlying objective is the attainment of fairness in the process. If the process is fair, open and transparent and the affected person has been enabled to respond to the concerns of the decision-maker, there may be situations where the reasons for the decision are obvious and that effective judicial review is not precluded.” (7.5) Therefore, it is possible that the reasons for a decision may be derived in a variety of ways, either from a range of documents or from the context of the decision, or in some other fashion.

However, as is clear from the above analysis, this is always subject to the requirement that the reasons must actually be ascertainable and capable of being determined. In this regard, I refer to my judgment in EMI, where I stated at paragraph 6.8:- “While the comments made in Christian related to the specific circumstances of that case and derived from the context of a development plan, it seems to me that there is a more general principle at play. Legal certainty requires, as was pointed out in Christian, that it must be possible to accurately determine what the reasons were.

There should not be doubt as to where the reasons can be found. Clearly, an express reference in the decision itself to some other source outside of the decision document meets that test. Where, however, it is suggested that the reasons can be found in materials outside both of the decision itself together with materials expressly referred to in the decision, then care needs to be taken to ensure that any person affected by the decision in question can readily determine what the reasons are notwithstanding the fact that those reasons do not appear in the decision itself or in materials expressly referred to in the decision.” (7.6) Again, it is worth emphasising the point made earlier.

The range of persons who are able to challenge a particular decision will vary from case to case, as will the extent of their involvement in the process. Thus, as a consequence of the above analysis, the requirement that reasons given for a decision must be adequate necessitates that, where the reasons are not included in the text of the decision itself, they must be capable of being readily determined by any person affected by the decision. Clearly, the ability of a person who was not involved in the process, but who is nonetheless entitled to challenge the decision, to identify the reasons for a decision, where those reasons are to be derived from a diffuse range of sources, will differ greatly from the ability of a person who was involved in the process to do so.”

135. As referred to earlier in this judgment, similar principles, where the issue of ‘reasons’ arise in a costs context, were addressed by Herbert J. in C.D., at paras 56 and 57 of his judgment. Paraphrasing Herbert J. in C.D., while it was necessary for the (then) Taxing Master, now the CLCA/LCA, to give reasons for his or her decisions, it was neither necessary nor desirable that this should take the form of a lengthy dissertation or legal discourse. Rather, it should be possible for the paying party, and for the High Court on review, to quickly and efficiently identify at a glance the item of costs claimed, whether it has been allowed or disallowed and the reason or reasons why.

136. In C.D., Herbert J. held that it was not necessary for the Taxing Master to provide, nor was it desirable that the High Court on a review of taxation should have to consider, lengthy opinions referring to evidence that was adduced and submissions made before the Taxing Master and citing and analysing numerous legal authorities. He suggested that the ideal Report would be in the form of a commentary, with the item of costs in issue appearing in one column of the text and the ruling of the Taxing Master in the opposite column of the text, but accepted that this might not always be achievable in practice.

137. Under the sub-heading “Reasons”, the CLCA introduced his approach at p. 8 (of 37) of the Consideration dated 5th November 2024 as follows: “This case raises some fundamental issues as to how an adjudicator actually adjudicates on the costs in question. I say this as it is notable in this case that there is no disagreement between the parties in relation to the following matters: (1) The work carried out (2) The necessity for that work (3) The description of the various factors set out in [Schedule 1]. The dispute between the parties relates to how those agreed upon factors are translated into a figure for the costs to be allowed. In my view this gets to the very heart of the issue as to how an adjudicator takes the mandatory factors set out in the legislation and arrives at a figure for the costs allowable…. … It has been said that if the adjudication of costs is a science[,] it is not an exact science [Doyle v Deasy [2003] IEHC 617 per Ó’Caoimh J. at p.37]. This is undoubtedly the case where the legislation provides no precise formula whereby a figure may be easily arrived at. It would be of course be possible to construct such a system that is determined by reference to a particular formula. For example, a very simple approach would be that the legal costs recoverable are determined as a percentage of damages awarded. Other approaches could be adopted in a similar vein which would bring a degree of certainty to the assessment. However, none of those approaches were adopted by the legislature in enacting the 2015 Act”.

138. The CLCA adopted a methodological approach as prescribed by the 2015 Act and described inter alia at pp. 9 and 10 that process as follows – stating that the LCA: “must conduct a process of assessment prior to arriving at a figure for the costs allowable. What is missing from the [2015] Act, and what could never really be provided for, is a formula for how the assessment of the factors set out in Schedule 1 are to be converted into a figure. That final step is the main issue in dispute here. As can be seen from the broad summary of the submissions of the defendant, complaint is made that I failed to provide sufficient reasons for this final step. The structure of the legislation is clear in that any determination of a fair and reasonable allowance must take into account a multitude of factors. The legislation is silent as to any hierarchy to be given to the relevant factors and it certainly does not require a breakdown of any allowance by reference to the factors identified.

The case law [Mulholland v An Bord Pleanála (No.2) [2006] I.R. 453] on the obligation of a decision maker to give reasons, and the required adequacy of those reasons, requires that the reasons must be such so as to:

- give a party sufficient information as necessary and appropriate to decide whether there is a reasonable chance of appealing or judicially reviewing;

- arm that party for the appeal or review;

- enable that party to know whether the decision maker has directed its mind adequately to the matters it was required to consider; and

- enable the Courts to review the decision. When faced with the submission that the paying party does not accept that the reasons furnished are adequate as they cannot understand why their suggested allowance was not accepted and do not consider the reasons furnished to adequately explain why the various allowances were made, it is difficult, if not impossible, to meet such an objection save by indicating what my view is on the various factors I am obliged to consider and what I consider a fair allowance to be. I accept that there may appear to be a gap between the consideration of the factors and how such consideration results in the figure arrived at. However, that is simply the nature of the adjudication of costs. There is no mathematical formula provided for in the legislation nor is there any ‘scientific’ approach that can be adopted. For example, an instruction fee is not divided up as between the various factors outlined in the legislation, whereby 20% is allocated to the complexity of the matter, 20% is allocated to the number of documents involved, 20% is allocated to the urgency et cetera. What the legislation mandates is that specified factors are to be considered in determining what a reasonable amount of legal costs should be. The simple truth of the matter is that in carrying out my functions in determining what [a] reasonable amount should be in respect of the legal costs claimed, I have overall regard to the factors set out in the legislation, the overall context of the litigation and various specific matters identified by the parties or myself in arriving at a figure. It would be disingenuous to suggest that I apply any specific formula thereby explaining how “precisely” I arrived at a figure. That is not what I do, nor is it required of me by the legislation. Therefore, what I have attempted to do in both the original determination and this consideration is set out my views on the issues raised by the parties and consider them, and the other statutory factors in arriving at what I consider to be a fair and reasonable figure for the costs allowable.”

139. The determination on 2nd October 2023 and the Consideration by the CLCA/LCA dated 5th November 2024, in my view, provided a reasoned basis for the allowances which were made and which satisfied the provisions of s. 157 of the 2015 Act (including s. 157(9)) and the above requirements outlined in the case-law, whilst simultaneously recognising the legislative gap or lacuna which was present in 1995 Act and remains in the 2015 Act when it comes to the assignment of allowances.

Comparators

140. It was submitted on behalf of the HSE that in general, the determination of whether the costs are reasonable in amount (as per Schedule 1(1)(b) of the 2015 Act) involves looking not only at the volume of material, and assessing whether or not the statutory criteria are applicable but must involve an element of comparison with other cases.

141. The HSE furnished to the CLCA/LCA what was described on its behalf as an extensive schedule of 17 comparators divided into three categories: (a) taxed and adjudicated costs; (b) settled costs i.e., where agreement had been reached between parties’ legal costs accountants;

(c) comparators in autism spectrum disorder cases.

142. There were two aspects to the HSE’s submissions on comparator evidence.

143. It furnished statistics in their booklet and also relied on the case of ZEM (A Minor) v. The Governors and Guardians of the Hospital for the Relief of Poor Lying in Women, which related to an agreed instructions fee of €350,000 against a claim of €490,000 in October 2022 and a brief fee claimed at €120,000 which was agreed at €75,000, which it claims highlighted the broad similarities between that comparator and this case but which were not directly addressed by the CLCA/LCA either in its determination or Consideration.

144. During the Consideration, the HSE furnished a schedule of comparator evidence which, it submits, demonstrated a range of instructions fees between €315,000 and €435,000 with brief fees ranging from €70,000 to €90,000.

145. The HSE takes issue, therefore, with the allowances of the CLCA/LCA being at the extremely high end of the costs spectrum and seeks to characterise the approach of the CLCA/LCA to the sense-check of comparators as equating (wrongly) to their being of limited or less value than they once were and further submits that such an approach is inconsistent with what was said in Sheehan i.e., comparators, if properly used, can be a valuable guide.

146. It is further submitted on behalf of the HSE that the CLCA/LCA’s use of comparators, and reference to the consumer price index and the possibility of higher numerical values (which was not raised previously or notified to it), in effect represented a retrospective justification of the allowances made by him rather than an explanation of how the level of allowance was assigned by him.

147. It is contended by the HSE that the comparators which were furnished provided guidance and a range but that the decision of the CLCA/LCA brought this case far beyond that range.

148. Under the sub-heading “Comparators”, at pp. 10-12 of the Consideration, the CLCA acknowledges that much of the oral hearing was taken up with submissions on the role of comparators in an adjudication and he observes as follows: “The most definitive statement on comparators comes from obiter comments of Laffoy J. in the case of Sheehan v Corr [2017] 3 I.R. 252 [at para.123]. Speaking for a unanimous five member Supreme Court [the Court comprised Denham C.J., O’Donnell J., McKechnie

J. and Clarke J.], she stated:

(119) While the issue of comparators, which did arise on the appeal to the Court of Appeal, does not arise in this appeal, I think it is appropriate to observe obiter that, if used properly, the likelihood is that comparators are a valuable guide to the assessment of a fee. While the substance of the fee to be assessed in one case may be different from that in another, the comparison of the two is possible, and that can lead to adjustments for alterations which have occurred in practice and law and in the market as between the respective positions of the comparator and the parties in the case under consideration. At a minimum such an exercise is a useful “sense check” and may be more easily and cheaply carried out than, say, an in-depth analysis of timesheets and such like”.

149. The CLCA observed that the case-law which preceded Sheehan was of limited assistance and that Laffoy J.’s comments in Sheehan rejected the suggestion that comparators should be rarely used or only in exceptional circumstances and that, therefore, the position which the CLCA intended to adopt was “that as described by Laffoy J. i.e. where used properly, comparators may be a valuable guide and a minimum they provide a useful ‘sense check’” and to “reconsider and review” his allowances “by reference to the comparators provided to determine whether any adjustments are called for”.

150. Both the plaintiff and the defendant submitted comparators to the CLCA.

151. At pp. 28-31 of his Consideration, the CLCA treats of the “Comparators Submitted” and, as before, he sets out his approach to these matters – i.e., as a residual ‘sense check’ – in the initial paragraphs under this sub-heading as follows: “Having reviewed and reconsidered my allowances I will now consider those allowances by way of ‘sense check’ against the comparators submitted to determine whether any adjustment is required. The defendant submitted 17 comparator cases. They were all said to be ‘catastrophic birth injury cases’.

Four related to costs which were taxed/adjudicated, the remainder were settled by the parties prior to taxation/adjudication. Cases that were settled are difficult to compare, as the reasons why a party settles their costs are varied and the accepted figure for costs may not reflect the true value of the work done. The cases that were taxed/adjudicated show a range of instruction fees allowed from €321,000 to €435,000 with brief fees ranging from €50,000 to €85,000. A review of the reports of those decisions provides an overview of the issues arising in each case and the factors to be taken into account by the Taxing Master or Adjudicator.

If the costs were settled there is, obviously, no reference to such factors. What a review of the reports/decisions cannot replicate is the detailed review of the solicitor’s file relating to each matter. It is only by reviewing the entirety of the file that a true assessment of the work undertaken can be made. When dealing with catastrophic birth injury cases it is difficult to compare the statutory factors involved to any meaningful extent based on the reports and determinations submitted. Such inherent limitations can be seen from the table that accompanied the cases and which was referred to in both written and oral submissions.

That table has columns for: date costs resolved, damages awarded, whether an interim/final settlement, number of Liability experts and reports, number of quantum reports, whether liability was conceded, the stage the matter settled, fees allowed. Such categories are fine as far as they go, however I would note only one category corresponds to a factor to be considered under [S]chedule 1, damages awarded. The others may be relevant to a consideration of some of the other categories, such as the number, importance and complexity of documents to be examined under paragraph d.

To an extent this reinforces my earlier comments on the difficulty of describing the relative complexity or novelty of an issue. Whatever view one takes of the issue, that cannot be reproduced in a table. Any attempt to do so, say by assigning a value for complexity from 1-10, would be entirely subjective and is not an approach that would be universally adopted, and certainly not by an adjudicator. That is no criticism of the table produced, it is simply to show the inherent limitations of the value of such a table when seeking to compare such cases”.

152. Again, the CLCA referred to the decision of the Supreme Court in Sheehan observing that “In adjudications, the leading authority of Sheehan v Corr is set out above in detail, and indicates that comparators, when properly used, can provide a useful guide in assessing a fee and are a useful sense check of an allowance”.

153. After reviewing the comparators, the CLCA observed as follows: “What the table, and associated reports shows is that in catastrophic injury cases a range of fees are claimed and allowed. My allowances are clearly at the top end of the scale of the fees previously allowed. I do not intend to go through every comparator submitted and identify points of similarity and distinction, not least because they are not binding upon me save to the extent outlined in Sheehan v Corr. There are a number that do want to consider in closer detail”.

154. The LCA reviewed a number of comparators in the Consideration including CT v The Guardians and Directors of the Coombe Lying-in Hospital which was a decision of Taxing Master O’Neill from July 2018 which referred to two comparators relating to cerebral palsy cases (CM and DGH) and the CLCA queries why they had not been included in the table of comparators. He refers to another comparator – BG v The Children’s University Hospital.

155. The CLCA states, therefore, referring to the HSE’s submissions, that insofar as comparators are to be used as a guide and a sense check, his allowances were “not significantly outside the comparators as submitted and are in fact less than the highest allowances made on previous taxations in catastrophic birth injury cases” and that it was open to question whether, in light of the allowances made in the comparators, and particularly when adjusted for inflation, it could still be maintained (on behalf of the HSE) that “the Schedule demonstrates that the LCA’s allowance in respect of the Instructions Fee in excess of half a million Euro is a significant outlier and excessive to the degree that it is not “reasonable in amount”.”

156. The CLCA, therefore, considered that “[w]hen properly viewed the core of the defendant’s objection, that my allowances were exceptional when compared with other similar cases is not supported by the comparator evidence…Taking all of the comparators as a whole I am satisfied that my allowances sit comfortably towards the top end of previous allowances for catastrophic birth injury cases. Given the factors involved in this case as set out above and in my original determination I am satisfied that this case sits appropriately at the top end of the cases as submitted”.

157. The Consideration addressed the issue of a “Second Senior Counsel” and referred to the matters which he addressed in his previous Determination dated 2nd October 2023.

158. The Consideration addressed in detail the “Complexity and Novelty” of the case and in doing so, the CLCA “re-reviewed the entirety of the papers in this case” having regard to the various medical experts, where, for example, until the report of a particular expert had been received, the previously cited reports on causation showed “the complexity of the case on causation being mounted on behalf of the plaintiff” and having regard to “the negative reports received it was obvious that the case being made was not a straightforward matter” and that “the case only proceeded” when a named medical professional “was identified as a possible expert due to his involvement in another case” with the Consideration by way of footnote 17 on p. 17 referencing a “newspaper report on Solicitor’s file dated 21st June 2019.”

159. The CLCA carried out a similar exercise in the context of the defendant’s medical reports.

160. He referenced the complexity of the case and stated at p. 19 of the Consideration that “[t]he fact that recognised experts in their respective fields could arrive at such diametrically opposed views provides a stark indication of the fundamental medical complexity at the heart of this claim” and stated that this complexity extended to the factual basis of the plaintiff’s case.

161. Given the nature of the underlying proceedings and the myriad of documentation and materials, which involved over 30 expert witnesses, 11 witnesses as to fact, approximately 45 reports, which addressed a number of issues including inter alia therapies, care, accommodation and financial matters with an estimated trial time of 10 weeks, all of which the CLCA/LCA considered, I do not consider that the CLCA/LCA overstated or placed too much weight on the “complexity and novelty” of the case or that the identification by junior counsel of a medical expert to assist in the case was a central factor or paramount feature in the assessment. Rather, in relation to the latter issue, on foot of a newspaper article, the solicitor requested junior counsel to make further inquiries which identified the expert in question who was subsequently briefed in detail by the solicitor and was engaged in relation to the case.

162. In terms of causation and the particular alleged pleas made in the case in relation to the alleged consequences of a catastrophic birth injury, the CLCA stated that whilst such pleas may be a feature of such claims, he was unaware of any judgment of the Superior Courts accepting the alleged link to the particular injury alleged and “[t]herefore, in any case where such a link is claimed, and were that case to proceed to hearing, it would become a test case for that issue, albeit on the precise medical facts of the particular case”, i.e., such alleged similar claims made in previous cases had settled, and as a matter of fact, there was no previous judicial decision, judgment or determination supporting cases of this nature and there was an absence of certainty as to outcome.

163. The LCA stated that his assessment of complexity and novelty must not be influenced by the fact that the case settled. He approached this issue on the basis of assuming that the matter would have proceeded to trial on the pleadings and observed that “[t]he fact that the matter settled, and I note without any concession on liability or acceptance of causation, in my view does not diminish the complexity and novelty of the claim as pleaded had it proceeded to trial” and the LCA was “satisfied from the review and reconsideration of the file and in particular the medical reports as detailed above that claim advanced was both novel and highly complex.”

Level of allowance

164. It was submitted on behalf of the HSE that the allowances allowed by the CLCA were “off the scale”. In response, it was submitted on behalf of the plaintiff that the allowances were at the upper end of the scale and were not disproportionate.

165. The factors in Schedule 1 of the 2015 Act were applied by the CLCA in his Consideration dated 5th November 2024 where he considered matters including, inter alia, novelty, complexity, the involvement of the solicitor, the expertise engaged in the context of the uncertainty around the question of causation and the conflicting expert evidence to be given on this issue, and the reliance on the expert evidence of the medical professional who was retained after the plaintiff’s legal team became aware of his involvement in separate proceedings.

Exceptionality

166. The Consideration addresses the question of “Exceptionality” by reference inter alia to one of the ten matters referred to Schedule 1, para. 2, where at Sch. 1, para. 2(a) of the 2015 Act in determining whether the costs are reasonable in amount, the CLCA was required to consider “the complexity and novelty of the issues involved in the legal work.”

167. On behalf of the HSE, it had been submitted that the facts of the case were not exceptional but that the CLCA’s adjudication was in the sense stated above, i.e., as being disproportionately excessive or “off the scale”.

168. The CLCA indicated that it was not possible to sub-divide categories of complexity and that para. 2(a) of Schedule 1 required him “to consider ‘the complexity and novelty of the issues involved in the legal work’ as one of ten possible matters in determining whether the costs are reasonable in amount”, adding as follows: “In cases such as this, the complexity has to be assessed by reference to the overall case being made by the plaintiff and the defence being maintained by the defendant. It is for this reason, amongst many others, that I review in full the solicitor’s file, including all correspondence, attendance, counsel’s brief, expert reports on both sides, pleadings etc. Having completed that task, I am then in a position to form an opinion on the complexity of the matter by reference to the entirety of the documentation reviewed…. …In this case I have re-read the papers in the matter over several days and weeks. Having done so[,] I am satisfied that only the most superficial view can be taken of the level of complexity and novelty involved in a case, as well as the other statutory factors to be considered, without having done so. Therefore, whether this case is as complex/novel etc. as some other catastrophic birth injury case is an almost impossible task to properly carry out without reviewing the file and papers in the other case as well. My assessment and allowances are based on the so called ‘root and branch’ analysis of the work undertaken and issues arising. I cannot do so in respect of the comparator cases submitted. This must be considered an inherent limitation on the ability to try and categorise this case as being a ‘standard’ complex case. This submission is linked to that on the comparators submitted in that the thrust of the submission is that there was nothing so unusual or exceptional about this case, when compared to other similar catastrophic birth injury cases, that would warrant the allowances made. I deal with the comparators submitted later in this consideration...”

169. The CLCA, at pp. 22-23 (of 37), carried out a “Review and Reconsideration of Instructions Fee for Section A”, pointing out that the period of work covered over four and a half years running from receipt of instructions on 4th February 2015 to 9th October 2019 and that his re-review of the file confirmed that substantial work of importance was carried out during this period of time and that the initial reports which had been carried out were the foundation of any medical negligence case and the work undertaken then was of considerable importance.

170. The CLCA pointed out that no issue had been taken with his finding that the work during this period was crucial to the outcome of the matter for the plaintiff. The CLCA also stated he had addressed earlier in his Consideration report the issues which had been raised in his previous determination including “the purported complexity of the matter, the contended for novelty, the contended for ‘abnormally long’ period of time and the degree of burden of responsibility borne by the solicitor.”

171. The CLCA at pp. 23-26 carried out a “Review and Reconsideration of Instructions Fee for Section B” where he inter alia reviewed and reconsidered the entirety of the significant file during which time the majority of work had been undertaken and identified issues such as genetic testing, split trial, and experts and “having reconsidered the statutory factors to be applied” he concluded that there was nothing in the submissions of either party that would cause him to alter his original determination.

172. The CLCA at pp. 26-27 carried out a “Review and Reconsideration of Instructions Fee for Section C” which is referable to the Solicitor’s professional fee and the work carried out from 6th May 2022 to 23rd June 2022 and the work carried out from the date of the adjourned trial to the date of settlement. Again, after reconsidering these matters, the CLCA did not alter his original determination.

173. The CLCA at pp. 27-28 carried out a “Review and Reconsideration of Counsel’s Fees” and after having reviewed and reconsidered his original documentation and re-reading all of the documentation briefed to counsel including the substantive correspondence passing between counsel and their instructing solicitor, he decided not to alter his allowances for these matters.

174. The CLCA in his review and reconsideration carried out pursuant to s. 160(5)(a) of the 2015 Act in the Consideration dated 5th November 2024 decided not to vary his determination. At Appendix 1 of this Consideration, the CLCA further addresses the Schedule 1 factors under the following subheadings (beginning at p. 32): (A) Complexity and Novelty; (B) Skill and Specialised Knowledge; (C) Time and Labour; (D) Urgency; (E) Place and Circumstances; (F) Number, Importance and Complexity of Documents; (G) Value; (H) Not Applicable; (I) Research and Investigative Work Carried Out. At Appendix 2 of this Consideration, the CLCA sets out a chronology in respect of the briefing of senior counsel.

175. In his Consideration dated 5th November 2024, as summarised above, the CLCA had regard to and applied the provisions of the 2015 Act, including s. 155, Schedule 1 and s. 157. I do not consider that the HSE has established that there was any error of fact, law or principle in the methodology adopted by the CLCA in his Consideration. Further, assuming in the alternative that there was an error, I do not consider that the allowances made by the CLCA in this Consideration were unjust. The Consideration was reasoned and complied with the provisions of the 2015 Act and the case-law on reasons referred to earlier in this judgment. The reference to, and assessment of, comparators (and to the CPI), in the Consideration dated 5th November 2024 comprised a residual sense-check which was conducted after the CLCA had applied the statutory criteria prescribed by the 2015 Act, including inter alia s. 155, Schedule 1 and s.157 of the 2015, in determining whether the costs were reasonable in amount.

CONCLUSION

176. Insofar as the CLCA/LCA’s written determination dated 2nd October 2023 and the Consideration dated 5th November 2024 are concerned, the HSE has failed to establish an error of fact, law or principle in his treatment of the solicitor’s instruction fee and the brief fees of senior counsel and junior counsel.

177. The allowances made by the CLCA/LCA in relation to these items were not wholly excessive and unreasonable on a party and party basis and were not unjust.

178. In the circumstances, therefore, and for the reasons set out in this judgment, I refuse the HSE’s application for a review pursuant to s. 161 of the 2015 Act and O. 99 of the RSC 1986, and the reliefs sought in the Notice of Review of Adjudication dated 25th November 2024.

PROPOSED ORDER

179. I propose to make an Order refusing the HSE’s application for a review pursuant to s. 161 of the 2015 Act and O. 99 of the RSC 1986 and the reliefs sought in the Notice of Review of Adjudication dated 25th November 2024.

180. I shall put the matter in for mention on Wednesday 13th May 2026 at 10:30 to address the question of costs.

Appearances

181. Luán Ó Braonáin SC and Derry Hand BL appeared for the HSE instructed by Ruth Finnerty solicitor, Ronan Daly Jermyn Solicitors, Aengus House, Dock Street, Galway.

182. Alan Keating SC and Padraig Lyons BL appeared for the Plaintiff/Respondent instructed by Vincent Toher & Co., Legal Chambers, 2 Washington Street West, Cork.

CONLETH BRADLEY

1st May 2026