High Court refuses amendment of perfected orders due to estoppel and procedural delay.

APPROVED [2026] IEHC 295

THE HIGH COURT

2016 960 P

2017 8786 P

BETWEEN

AGNIESZKA NOWAK

PLAINTIFF

AND

INTESA SANPAOLO VITA S.P.A

DEFENDANT

JUDGMENT of Mr. Justice Garrett Simons delivered on 13 May 2026

INTRODUCTION

1. This judgment is delivered in respect of an application to amend several perfected orders of the High Court. The proposed form of the orders had been notified to the parties in advance, as part of the principal judgment. The parties were afforded an opportunity to contend for a different form of order than those proposed. Neither party availed of this opportunity at the time. The Plaintiff now seeks to amend the orders.

PROCEDURAL HISTORY

2. These proceedings have their genesis in a claim for wrongful dismissal. In brief, the Plaintiff contends that the purported termination by the Defendant of her contract of employment in August/September 2015 was unlawful. The Plaintiff contends, in particular, that the purported termination was invalid because it was not carried out by a director of the Defendant company.

3. The Plaintiff commenced two sets of High Court proceedings in February 2016 and September 2017, respectively. As explained below, the two sets of proceedings have since been consolidated by orders perfected in July 2024.

4. The Plaintiff failed to progress either set of proceedings with reasonable expedition. No statement of claim had been delivered as of July 2023, i.e. some six or seven years after the respective proceedings had commenced. The Defendant filed a motion to dismiss for delay in each set of proceedings on

12 July 2023. The Plaintiff subsequently delivered a statement of claim in September 2023. Thereafter, the Plaintiff filed motions for judgment in default of defence on 8 December 2023. The Plaintiff delivered a further amended statement of claim on 11 December 2023.

5. The motions to dismiss for delay came on for hearing before me on 18 April 2024. I delivered a reserved judgment on 9 May 2024: Nowak v. Intesa Sanpaolo Life DAC [2024] IEHC 263 (“the principal judgment”).

6. In brief, the principal judgment held that notwithstanding that the delay on the part of the Plaintiff had been both inordinate and inexcusable, the balance of justice lay in favour of allowing the proceedings to go to trial.

7. It should be noted that the decision on the application to dismiss for delay was made by reference to the then leading authority of Primor plc v. Stokes Kennedy Crowley [1996] 2 IR 459. The judgment predated the restatement of the principles governing delay in Kirwan v. Connors [2025] IESC 21.

8. The principal judgment set out the proposed form of order as follows:

“For the reasons explained, the Defendant has failed to

establish that the delay in progressing the two sets of High

Court proceedings has caused it material prejudice such as

would justify an order dismissing the proceedings on the

grounds of inordinate and inexcusable delay. Accordingly,

the reliefs sought in the two notices of motion are refused.

As to costs, my provisional view is that the Plaintiff, having

been successful in resisting the application to have the High

Court proceedings dismissed, is entitled to recover her

allowable expenses as against the Defendant in respect of

each of the two motions. In circumstances where the

Plaintiff is a litigant in person and did not incur the costs of

professional legal representation, such costs would be

confined to such outlay and other out-of-pocket expenses as

are properly allowable in accordance with the general

principles governing legal costs (Dawson v. Irish Brokers

Association [2002] IESC 36, [2002] 2 I.L.R.M. 210). In

default of agreement, the costs are to be measured under

Part 10 of the Legal Services Regulation Act 2015.

The Plaintiff had issued motions seeking to enter judgment

in default of defence. These motions have been adjourned

generally pending the determination of the Defendant’s

application to strike out the proceedings. That application

has now been determined against the Defendant.

Accordingly, the Defendant should deliver a defence to the

proceedings.

Subject to hearing any submissions to the contrary, I propose

to make the following case management directions: (1) an

order consolidating the two sets of High Court proceedings;

(2) an order deeming the (second amended) statement of

claim of 11 December 2023 as having been validly delivered

in the consolidated proceedings; and (3) an order directing

the Defendant to deliver a defence to the consolidated

proceedings by 10 June 2024. The Plaintiff is to have the

costs of the motions for judgment in default.

If either party wishes to contend for a different form of order

than those proposed, then that party should file short written

legal submissions (no more than 2,000 words) by 10 June

2024. In the event that submissions are filed, the other side

will have two weeks thereafter to reply.”

9. As appears, the parties were directed to file written legal submissions by a specified date if they wished to contend for a different form of order than those proposed. In the event, neither party filed any such submission. The Defendant duly delivered its defence on 10 June 2024.

10. The Registrar assigned to these proceedings subsequently perfected the court orders. Four orders were drawn up. In each set of proceedings, an order was perfected refusing the Defendant’s motion to dismiss for delay, and a further order was perfected (in the context of the Plaintiff’s motions for judgment in default) recording the case management directions, including the deeming good of delivery of the statement of claim and the direction that a defence be delivered by 10 June 2024. The express consolidation direction appears in the order perfected under High Court 2016 960 P; the parallel order in High Court 2017 8786 P makes reference to the consolidated proceedings.

11. Strictly speaking, it was only necessary to draw up a single order in each set of proceedings. This is because the case management directions had been made as part of the determination of the motion to dismiss for delay, rather than as part of the motion for judgment in default of defence. At all events, the approach of preparing four orders captured the essence of what had been proposed in the principal judgment.

12. The Plaintiff then took steps to have her outlay and other out-of-pocket expenses measured (“adjudicated”) pursuant to Part 10 of the Legal Services Regulation Act 2015. The Plaintiff has since explained that the Legal Costs Adjudicator raised a query in relation to the form of the orders. More specifically, it seems that the Legal Costs Adjudicator queried whether the orders extended to the outlay and other out-of-pocket expenses associated with the two motions to dismiss for delay.

13. The Plaintiff wrote to the Registrar as follows:

“There were four motions in the above matters. However

there were only two orders made instead of four orders.

The Court failed to make orders in relation to the

Defendant’s motions filed on 12 July 2023 to strike out

plenary proceedings for want of prosecution and on the

grounds of delay. However, the Court held at para. 36. ‘The

Plaintiff had issued motions seeking to enter judgment in

default of defence. These motions have been adjourned

generally pending the determination of the Defendant’s

application to strike out the proceedings. That application

has now been determined against the Defendant.

Accordingly, the Defendant should deliver a defence to the

proceedings.’

As I am a lay litigant it was brought to my attention at the

hearing of the costs adjudication today. It now turns out that

I am unable to claim the expenses in relation to the successful

defence of those two Defendant’s motions because of the

lack of formal Orders. The Costs Adjudicator adjourned the

substantive hearing pending the clarification in relation to

Orders of the High Court.

In fairness and for completeness, the Court should have

made Orders in relation to all of the motions filed and now I

am prejudiced as a result of the Court’s approach to same.

Would you please advise whether the Court can make

outstanding Orders without any further formal application to

the Court so that I can claim all of my expenses to which I

am duly entitled to.”

14. It would appear from the content of this email that the only orders which had been put before the Legal Costs Adjudicator were the orders in relation to the two motions for judgment in default of defence. This is so notwithstanding that four orders had been made, including an order in respect of each of the two motions to dismiss for delay.

15. The Registrar subsequently contacted me in April 2025 in relation to the Plaintiff’s request to amend the orders pursuant to the “slip rule” under Order 28, rule 11 of the Rules of the Superior Courts.

16. Unfortunately, I had not appreciated at the time that four orders had been perfected and mistakenly thought that the complaint was that no orders had been drawn up in relation to the motions for judgment in default of defence. It should be explained that, as of April 2025, judges did not have direct access to the High Court’s computerised case management system: UCMS.

17. Having noted that the two motions for judgment in default had not been formally listed before me for hearing in May 2024, I directed that the Registrar reply to the parties in the following terms:

“I have been directed by Mr. Justice Simons to write to you

as follows. The court records indicate that your motions for

judgment in default had been adjourned generally with

liberty to re-enter. The motions were not, therefore, listed

for hearing before Mr. Justice Simons. If you now wish to

re-enter the motions for the purpose of applying for the costs

of same, you should take the following steps. First, you

should write to the solicitor on the other side asking them

whether they will consent to a costs order in your favour. If

the solicitors do not consent, you should contact me, as

registrar, and the two motions will be listed before Mr Justice

Simons in early course.”

18. This was a mistake on my part. I should have checked the terms of the principal judgment, in addition to checking the listings. Had I reminded myself of the precise terms of the principal judgment, I would have seen that the proposed form of order had been intended to allow the Plaintiff to recover her outlay and other out-of-pocket expenses of all four motions.

19. Happily, this mistake did not have any adverse effect. Rather, the Registrar progressed matters further and amendments were made, with my approval, pursuant to Order 28, rule 11 on 28 May 2025. The two orders in respect of the motions to dismiss for delay were each amended by inserting the additional text:

“AND IT IS ORDERED the Plaintiff is entitled to her costs

of the motions for judgment in default”

20. Thus, as of 28 May 2025, the recoverable costs of the motions for judgment in default of defence were addressed in all four of the orders.

21. Thereafter, a further complication arose in the adjudication process. According to the Plaintiff, the Legal Costs Adjudicator has raised a query as to whether he has jurisdiction to measure outlay and other out-of-pocket expenses in relation to a litigant in person. I have not been furnished with any of the materials from the adjudication process and thus cannot confirm the precise position.

22. The Plaintiff says that the Legal Costs Adjudicator has issued his determination. The Plaintiff has since invoked section 160 of the Legal Services Regulation Act 2015. This section permits a party to request the Legal Costs Adjudicator to reconsider his own determination. It seems that this consideration process has been adjourned pending the outcome of the application to amend the perfected orders.

23. The Plaintiff seeks to amend the orders in the following two respects. First, it is sought to delete all reference to the motions for judgment in default. Instead, the Plaintiff now seeks to re-enter those two motions and have them heard and determined. Second, it is sought to delete the direction that her outlay and other out-of-pocket expenses be adjudicated under Part 10 of the Legal Services Regulation Act 2015 and to have the court measure them instead.

24. In circumstances where the Plaintiff is a litigant in person, I dispensed with the necessity of her having to file a formal motion to amend, and, instead, made a direction, pursuant to Order 28, rule 11, that the matter be listed before me. I heard oral submissions from both parties on 15 April 2026. Prior to that date, the Plaintiff submitted a draft of the amended version of the orders she is requesting. I reserved judgment to today’s date.

CHRONOLOGY

25. For ease of reference, a chronology of the key events in the two sets of proceedings is set out in tabular form below:

August/September 2015 Purported termination of employment

3 February 2016 Plenary summons (1) issued

4 February 2016 Defendant enters appearance

26 February 2016 Plaintiff writes to say proceedings to be

discontinued

29 September 2017 Plenary summons (2) issued

September/October 2018 Plenary summons (2) served on defendant

8 October 2018 Defendant enters appearance

2 November 2018 Defendant’s solicitor requests statement of claim

12 July 2023 Defendant files motion to dismiss for delay

1 September 2023 Statement of claim delivered

11 October 2023 Amended statement of claim

8 December 2023 Plaintiff files motions for judgment in default of defence

11 December 2023 Further amended statement of claim

18 April 2024 High Court hearing of motions

9 May 2024 Judgment delivered on motions

10 June 2024 Deadline for submissions on proposed form of

order

10 June 2024 Defence delivered to consolidated proceedings

9 and 19 July 2024 Orders perfected

28 May 2025 Orders amended

13 April 2026 Plaintiff attempts to re-enter motions for judgment

15 April 2026 Hearing of application to amend orders further

DISCUSSION

JURISDICTION TO AMEND PERFECTED ORDERS

26. The appropriate course for a party who is dissatisfied with a judgment and order of the High Court is to pursue an appeal to the Court of Appeal. There are only two, or possibly three, exceptions to this course, as follows.

27. The first exception to the requirement to appeal is where all that is sought is the correction of a clerical mistake or of an accidental slip or omission. This exception is provided for under Order 28, rule 11, as follows: “Clerical mistakes in judgments or orders, or errors arising therein from any accidental slip or omission, may at any time be corrected without an appeal:

(a) where the parties consent, and with the approval of the Court, by the registrar to the Court,

(i) on the application to the registrar in writing of any

party, to which a letter of consent to the correction

from each other party shall be attached or

(ii) on receipt by the registrar of letters of consent from

each party; or

(b) where the parties do not consent, by the Court,

(i) on application made to the Court by motion on notice

to the other party or

(ii) on the listing of the proceeding before the Court by

the registrar on notice to each party.”

28. The second exception is where the amendment is for the purpose of ensuring that the order, as drawn up, correctly states what the court actually decided or intended. The case law indicates that this common law power should be exercised sparingly.

29. There might possibly be a further (third) exception as follows. It is well established that an appellate court, against whose orders there is no automatic right of appeal, has an exceptional jurisdiction to revisit a perfected order. See, generally, In the matter of Greendale Developments Ltd (No. 3) [2000] 2 IR 514 and subsequent case law. The principles governing this exceptional jurisdiction have been summarised as follows in Student Transport Scheme Ltd v. Minister for Education and Skills [2021] IESC 35 (at paragraph 2.13):

“There is, therefore, a clear and consistent line of authority

on this topic. A high weight has to be attached to the

principle of finality. The reason behind this is clear. Where

proceedings have reached an end, the parties are entitled to

expect that they will not have to continue to litigate the issues which have been finally determined. However, there may be exceptional circumstances where a failure to reopen may itself amount to a clear and significant breach of the fundamental constitutional rights of a party, going to the very root of fair and constitutional administration of justice, such that the decision sought to be reopened can properly be considered to be a nullity and not merely arguably in error.

Where such a situation arises through no fault of the party

concerned, then it follows that the limited jurisdiction to

reopen the case can be exercised.”

30. It is not immediately obvious that a similar jurisdiction exists in relation to a perfected order of the High Court against which there is an automatic right of appeal to the Court of Appeal. This right of appeal will generally provide a party who is aggrieved by a first instance judgment with an effective remedy. See, generally, G. v. Director of Public Prosecutions [2023] IEHC 386.

31. It should be emphasised that the placing of limitations on the jurisdiction of a court of first instance to reopen its own judgment is not informed by a naïve belief that judges do not make mistakes. As explained by O’Donnell J. in Nash v. Director of Public Prosecutions [2017] IESC 51 (at paragraphs 6 and 7), errors can and do occur. The limitations on the jurisdiction to reopen a first instance judgment are not designed to deny an aggrieved party a remedy; rather they simply restrict that remedy, in most cases, to a right of appeal. The rationale for so doing is that parties to litigation are entitled to assume that a perfected order is conclusive, subject only to the invocation of a right of appeal within time.

32. In ease of the Plaintiff, who is a litigant in person, this judgment has been prepared on the working assumption that there may be exceptional circumstances where the High Court might have jurisdiction to rewrite a perfected order notwithstanding that there is an automatic right of appeal to the Court of Appeal. As appears from the discussion which follows, there is nothing in the present proceedings which could engage such an exceptional jurisdiction. The proposed amendments represent an attempt to rewrite the perfected orders and to undermine the intent of the principal judgment. This attempt is made against a background where the Plaintiff failed to avail of the invitation to make submissions on the then proposed form of orders; sought to rely on the very orders which she now seeks to rewrite; and has been guilty of inordinate and inexcusable delay.

(1) AMENDMENTS RE: MOTIONS FOR JUDGMENT IN DEFAULT

33. The Plaintiff seeks to amend the orders by deleting all reference to the two motions for judgment in default of defence. The Plaintiff seeks, belatedly, to reenter those motions and to have them heard. This is done notwithstanding the fact that a defence was delivered as long ago as 10 June 2024. It seems that the Plaintiff’s ambition is to have the delivery of the defence invalidated, and then to enter judgment against the Defendant, without ever having to contest her claim for wrongful dismissal on the merits.

34. The amendments proposed are well beyond the scope of Order 28, rule 11. The amendments seek to correct neither a clerical mistake nor an accidental slip or omission. Rather, they seek to rewrite the orders, by deleting key elements of same notwithstanding that those elements give effect to the intention of the principal judgment. The principal judgment had proposed a series of case management directions which were designed to ready the underlying proceedings for hearing. A key element of this was to bring the exchange of pleadings to a close: this was to be achieved by deeming the (second amended) statement of claim as having been validly delivered in the now consolidated proceedings and by directing the delivery of a defence. These directions rendered moot the motions for judgment in default of defence. The only aspect outstanding was the costs of those motions, and this was addressed in the principal judgment by allowing the Plaintiff to recover her allowable outlay and other out-of-pocket expenses. There is nothing in the orders that requires “correction”.

35. In addition to the “slip rule” jurisdiction under Order 28, rule 11, all of the superior courts also enjoy an inherent jurisdiction to reopen a judgment prior to the perfection of the order in exceptional circumstances. Separately, an appellate court, against whose orders there is no automatic right of appeal, enjoys a broader jurisdiction to set aside a perfected order in exceptional circumstances. Even if one assumes, for the purpose of argument, that a court of first instance might possess a similar jurisdiction, notwithstanding the existence of an automatic right of appeal, this would not avail the Plaintiff for the reasons which follow.

36. First, it is a condition precedent to the exercise of the inherent jurisdiction that the moving party have suffered a fundamental denial of justice through no fault of its own. Here, the principal judgment had expressly indicated that the parties had an entitlement to deliver written legal submissions if they wished to contend for a different form of order than that proposed. The Plaintiff did not avail of this opportunity. It is not open, therefore, to the Plaintiff to assert, more than eighteen months after the event, that she has been treated unfairly. If the Plaintiff had any objection to the proposed form of order, which treated the motions for judgment in default as having been rendered moot, she should have delivered submissions in June 2024 as directed.

37. Second, it is a condition precedent to the exercise of the inherent jurisdiction that the moving party must not have acquiesced to the order complained of. Here, the Plaintiff has actively sought to rely upon the orders. As recited in the procedural history above, the Plaintiff sought to recover the costs of the motions for judgment in default of defence by referring the matter to adjudication under Part 10 of the Legal Services Regulation Act 2015. Indeed, the Plaintiff sought and obtained an amendment which introduced this costs element into the orders on the motion to dismiss for delay. The Plaintiff now seeks to delete the very wording which she herself had arranged to be added to the orders. The Plaintiff cannot approbate and reprobate.

38. It is obvious from the procedural history that the Plaintiff understood that the motions for judgment in default of defence had been rendered moot by the judgment on the motions to dismiss for delay. Logically, the costs of the motions for judgment in default of defence could not have been awarded in favour of the Plaintiff if the motions remained to be heard and determined. It was only because all parties understood that the motions were moot that it was appropriate to address the allocation of the costs of same. It is not open to the Plaintiff to commit a volte-face and to seek to treat the costs orders as never having been made.

39. Third, there is an onus on a party who seeks to set aside an order by reference to the court’s inherent jurisdiction to move promptly. Here, the Plaintiff has been guilty of inordinate and inexcusable delay. The first time that the Plaintiff sought to pursue the motions for judgment in default was on 13 April 2026, almost two years after the delivery of the principal judgment. On that date, the Plaintiff purported to re-enter the motions by mentioning same before a judge of the High Court in the Common Law motion list. This was done without the requisite motion for re-entry having been filed in the Central Office of the High Court.

40. The Plaintiff has not provided any proper explanation for this further period of delay. The most that has been said is that she is a litigant in person and did not understand the nature of an application for judgment in default of defence. With respect, whether they have legal representation or not, all plaintiffs, having invoked the jurisdiction of the court, bear the responsibility of prosecuting their claim with reasonable expedition. A litigant in person is not exempt from these responsibilities. Prolonged inactivity by a plaintiff is itself prejudicial to the administration of justice and may justify dismissal for want of prosecution.

41. The Plaintiff’s delay of almost two years in pursuing the motions for judgment in default of defence must be seen in the context of the overall delay in pursuing these proceedings and the earlier application to dismiss for delay. It will be recalled that, as of May 2024, the Plaintiff had already been found by this court to be culpable of inordinate and inexcusable delay. The Plaintiff now seeks to reverse the very limited progress which has been made in the proceedings in the intervening period by invalidating the defence which was delivered in June 2024.

42. In summary, therefore, even assuming that there might be an exceptional jurisdiction on the part of the High Court to set aside a perfected order, notwithstanding the existence of an automatic right of appeal to the Court of Appeal, those criteria are not satisfied in the particular circumstances of this case. There is no injustice to the Plaintiff in having the orders stand.

43. For completeness, it should be recorded that the Plaintiff is incorrect, as a matter of law, in suggesting that the court did not have jurisdiction to address the motions for judgment in default in the context of its case management directions. It is well established that a court which has refused an application to dismiss proceedings on the grounds of delay has an inherent power to case manage the proceedings with a view to ensuring that they are brought on for trial within a reasonable period. See Kirwan v. Connors [2025] IESC 21 (per O’Donnell C.J. at paragraph 26).

44. Indeed, but for the existence of this inherent jurisdiction to case manage the proceedings, the motion to dismiss for delay would likely have succeeded. It is only because this court was able to put in place measures to ready the proceedings for trial that the action was not struck out. These directions were in ease of the Plaintiff. The direction to deliver a defence by 10 June 2024 rendered moot the motions for judgment in default; and the recoverable costs of same were awarded to the Plaintiff.

Amendment would serve no useful purpose: motions spent

45. Even if it were permissible for the Plaintiff to re-enter the two motions for judgment in default—and for the reasons explained above, it is not—those motions would inevitably be dismissed. The legal test governing an application for judgment in default of defence has been considered in detail in Nowak v. Courts Service of Ireland [2026] IECA 81. The judgment explains that the “interests of justice” enquiry under Order 27 is broader than a “special circumstances” test and is fact sensitive. Relevant considerations include the extent of the delay, the explanation offered for it, the impact of the delay on the plaintiff (including any actual prejudice), the urgency of the case, the conduct and engagement of the parties during the period of default, and whether a defence has been finalised and made available to the plaintiff in advance of the hearing of the motion.

46. Where the defence has already been finalised and provided to the plaintiff in advance of the hearing, the formal making of an “unless order” may be unreal and academic. This is because the mischief at which Order 27, rule 9(2) is directed—the prospect of further default and a further motion—does not arise.

47. On the hearing of a motion under Order 27, rule 9, a court will rarely have sufficient knowledge of the detail of the case to allow it to reliably conclude that a defendant has no defence on the merits.

48. Having regard to the following factors, it is inevitable that any judge hearing an application for judgment in default now would be satisfied that it is necessary in the “interests of justice” that the time for delivery of the defence should be extended.

49. The relevant chronology is summarised below:

12 July 2023 Defendant files motion to dismiss for delay

1 September 2023 Statement of claim delivered

11 October 2023 Amended statement of claim

8 December 2023 Plaintiff files motion for judgment in default of defence

11 December 2023 Further amended statement of claim

18 April 2024 High Court hearing of motions

9 May 2024 Judgment delivered on motions

10 June 2024 Defence delivered to consolidated proceedings

50. It was entirely reasonable for the Defendant to seek to have its motion to dismiss for delay determined in advance of its incurring further expense in delivering a defence. If the motion to dismiss for delay had succeeded, that further expense would have been wasted. As appears from the principal judgment, this court found that there had been inordinate and inexcusable delay. It cannot be said, therefore, that the Defendant acted unreasonably in pursuing the motion to dismiss for delay.

51. It should be recalled that the Plaintiff herself had delayed for a period of some six or seven years prior to delivering a statement of claim in the proceedings. The statement of claim was only delivered subsequent to the Defendant filing its motion to dismiss for delay. The Plaintiff only filed her motion for judgment in default some five months later.

52. It was only when the motion had been decided against the Defendant that it became necessary for it to file a defence. This was done within a matter of weeks and by the specified date of 10 June 2024. It is inconceivable that any judge hearing a motion for judgment in default of defence would consider that it was not in the interests of justice to allow the Defendant contest the Plaintiff’s claim on the merits.

53. The intervening lapse of two years has strengthened that position. It will be recalled that the Plaintiff sought to re-enter the motions for the first time on

13 April 2026. The motions for judgment in default could not succeed in circumstances where the Plaintiff had delayed for almost two years in seeking to re-enter those motions. It would be inequitable to deny the Defendant the right to defend the proceedings on the merits by reference to its supposed delay in circumstances where the delay of the Plaintiff is even greater.

(2) OUTLAY AND OTHER OUT-OF-POCKET EXPENSES

54. The second set of amendments sought by the Plaintiff relate to the measurement of outlay and other out-of-pocket expenses. The principal judgment had proposed an order, in relevant part, in the following terms:

“In circumstances where the Plaintiff is a litigant in person

and did not incur the costs of professional legal

representation, such costs would be confined to such outlay

and other out-of-pocket expenses as are properly allowable

in accordance with the general principles governing legal

costs (Dawson v. Irish Brokers Association [2002] IESC 36,

[2002] 2 I.L.R.M. 210). In default of agreement, the costs

are to be measured under Part 10 of the Legal Services

Regulation Act 2015.”

55. This is a standard form of order. It is long established that a court could make an order allowing a litigant in person to recover their outlay and other out-ofpocket expenses. The recoverable costs include court fees and stamp duty actually paid; expert fees and similar professional outlays properly vouched; travel and accommodation expenses necessarily incurred for the purposes of the proceedings and properly vouched; and reasonable copying and postage expenses. The recoverable costs do not, however, include any sum in respect of the litigant in person’s own time, expertise or labour in conducting the litigation: Skoczylas v. Minister for Finance [2024] IECA 201.

56. There is nothing in the wording of the Legal Services Regulation Act 2015 which indicates an intention to oust this jurisdiction. Section 168(1)(a) of the Act provides that a court may order that a party to the proceedings pay “the costs of or incidental to the proceedings” of one or more other parties to the proceedings. This language mirrors that under the previous legislation, the Supreme Court of Judicature Act (Ireland) 1877, which has always been interpreted as allowing a self-represented litigant to recover their outlay and other out-of-pocket expenses.

57. This analysis is not affected by the statutory definition of “legal costs” which has been introduced by the Legal Services Regulation Act 2015. The subparagraphs of section 138 expand upon the chapeau of the definition.

58. It appears from her emails to the Registrar that the Plaintiff’s concern is as follows:

(i) Litigants in person do not incur “legal costs”, but rather “expenses”. The terms have different meanings pursuant to the Legal Services Regulation Act 2015 and cannot be used interchangeably. Therefore, a court order cannot refer to the “costs” of a litigant in person.

(ii) The “expenses” of a litigant in person need to be measured other than by way of adjudication because the Legal Costs Adjudicator does not have jurisdiction to deal with the expenses of a litigant in person.

59. For reasons similar to those discussed under the previous heading above, it is too late for the Plaintiff to raise these concerns now. The proper time for raising the concerns was in June 2024. Neither party made any submissions in relation to the proposed form of order. It would appear, therefore, that both parties are now estopped from denying (i) that the court has jurisdiction to direct the payment of expenses and outlay on the part of a lay litigant, and (ii) that the Legal Costs Adjudicator has jurisdiction to measure such costs.

60. If it transpires that the Legal Costs Adjudicator, of his own volition, raises a concern as to his jurisdiction, then the appropriate procedural route is a reference to the High Court pursuant to section 159 of the Legal Services Regulation Act 2015. Any concerns in relation to jurisdiction can then be properly dealt with in the context of that procedure by an exchange of written legal submissions and an oral hearing. The fact that the provision is made for the reference of a question of law to the High Court obviates any necessity for the court to invoke the supposed inherent jurisdiction to set aside the perfected orders.

61. The Plaintiff has suggested that this court should now take on the role of measuring the outlay. It is correct to say that the court does have a discretion, under Order 99, to measure costs in gross. Had the Plaintiff requested in June 2024 that this be done, this court would have been open to considering such a course of action. Indeed, at the initial hearing of the application to amend the perfected orders, I raised this possibility with the parties. It should be explained, however, that at that time I did not appreciate how far matters had advanced in the adjudication process. I was unaware that the Legal Costs Adjudicator had made his first instance determination. It seems to me that in circumstances where the Plaintiff has invoked and participated fully in the adjudication process, it is now too late to switch course and to have this court measure the costs.

CONCLUSION AND FORM OF ORDER

62. For the reasons explained, the application to amend the perfected orders is refused. The application to re-enter the two motions for judgment in default of defence is also refused.

63. As to the costs of the two applications, no order will be made. Whereas the Plaintiff has been unsuccessful in her applications, there had been some confusion initially in the drawing up of the orders. The fairest outcome, therefore, is that each side bears its own costs.

Appearances

The plaintiff appeared as a litigant in person

Frank Beatty SC and Roland Rowan for the defendant instructed by Jacob and Twomey Solicitors LLP