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Legal Costs in Ireland: Who Pays? the Laws and Principles and Comparative Considerations

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Legal Costs in Ireland: Who Pays? the Laws and Principles and Comparative Considerations LEGAL COSTS IN IRELAND: WHO PAYS? THE LAWS AND PRINCIPLES AND COMPARATIVE CONSIDERATIONS Thesis submitted in partial fulfilment of the requirements for the degree of Doctor of Philosophy at Anglia Ruskin University by Jevon Alcock (LL.M, Solicitor and Notary Public) Faculty of Arts, Law and Social Sciences, Anglia Ruskin University February 2019 Resubmission April 2020 Supervised by: Mr. Thomas Serby, Dr. Stefan Mandelbaum, Dr. Aldo Zammit-Borda. Acknowledgements I wish to express my gratitude to Mr David J. O’Hagan, former Chief State Solicitor, Dublin, Ireland who nominated me to serve on various committees and working groups on legal costs, which ignited my interest in this adjectival but pervasive area of law. I also wish to thank Dr. Desmond Hogan, and Mr Owen Wilson, Assistant Chief State Solicitors, both of whom supported my training and development. And, in this regard, I wish to acknowledge the financial assistance I received from the Chief State Solicitor’s Office towards my fees on the doctoral programme. Additionally, I wish to convey my thanks to Mr Brian Byrne, former Assistant Chief State Solicitor, who supported my admission as a solicitor in New South Wales, Australia, which in turn, ameliorated my legal knowledge and bolstered my capacity to perform comparative research. I wish to thank Mr Richard Walker, barrister-at-law, formerly head of the Commercial and Constitutional Litigation Section, who enabled me to secure experience across a broad swathe of subject areas, without which my capacity to undertake chapter 4 would have been fatally compromised. Moreover, I wish to thank Ms Karen Duggan, who as head of that section, ensured that I gained exposure to a broad cross-section of work. I wish to express my gratitude to both Ms Philomena Lyons, barrister-at-law (former Legal Knowledge Manager) and Ms Jean Cassidy (Information Manager, Knowledge and Information Services), for procuring sometimes obscure texts and materials from varying sources including Trinity College Dublin (The University of Dublin). I further wish to express thanks to my colleagues in the Chief State Solicitor’s Office, most notably, Ms Aoife Burke, Mr Karl Gordon, Ms Therese Guerin and Ms Joanna O’Connor. I wish to express my gratitude to Emeritus Professor Robert Home, who was my first point of academic contact with the Anglia Ruskin University, and who was very generous with his time. I also wish to convey special thanks to Dr. Leonardo Valladares (currently of The Royal Holloway University) who acted as my PhD supervisor from January 2016 until the summer of 2017, and to Mr Thomas Serby, who has a vast reservoir of knowledge in commercial litigation, and who acted as my second supervisor, before taking on the role of first supervisor in Autumn 2017. I must record my gratitude to Dr. Stefan Mandelbaum and Dr. Aldo Zammit-Borda who acted as my second and third supervisors, and particularly the former, who imparted focused structural advice. FAMILY DEDICATION I wish to thank my father Dr. Joseph N. Alcock (Snr.) PEng FSPE who was entrusted to proof-read the work. Finally, I wish to record my special thanks to my wife and son for their unrelenting support. My son, Sebastían, has always been very supportive of my interest in costs. Most of all, I wish to thank my wife, Alejandra, whose support has been unflinching and relentless. i ABSTRACT Nature of work; the thesis engages in a qualitative examination of the costs follow the event rule by performing a comparative study which is underpinned by a methodological foundation predicated on functional equivalence. It examines where the judiciary exercise their discretion to displace the rule, and it investigates the notional concepts of winners and losers in complex litigation. Scope of the work: It examines the genesis and development of the loser pays rule in Ireland and England and Wales and the exceptions that were created in those and other jurisdictions which observed the Supreme Court of Judicature Act model. It considers the costs follow the event rule and the American (“user pays”) rule which are the two dominant rules. What was found: The jurisdictions of England and Wales and Ireland have developed myriad exceptions to the loser pays rule, with no apparent synoptic connectivity, in order to temper the harshness of the rule and render fairness and access to justice. The loser and the user pays rules are now more identifiable by their exceptions, rather than by the rules themselves. Rather than casting a dark shadow over their respective exceptions, the rules have shrivelled, owing to the ubiquitous expansion of the multiplicity of these exceptions, which have performed a takeover. Conclusions drawn from the investigation: Using the Dworkian doughnut analogy, the whole in the centre represents the exercise of judicial discretion, which has expanded, to create an internal pressure. The exceptions, which are contemporaneously expanding, create a separate external pressure. As a result both pressures have circumferentially altered the character of the loser pays rule. Contribution to knowledge: the investigation makes a prominent contribution to the Law of Costs, owing to the: (i) comparative nature of the research; (ii) substantive body of work; (iii) originality of the topic; (iv) forensically in-depth nature of the investigation underpinned by a punctilious examination of pernickety rules; (v) conspicuous absence of publications on the costs follow the event rule in Ireland; (vi) cost neutral recommendations; (vii) factors in (i) – (vi) above. [Costs follow event, exceptions, discretion, and comparative considerations, Ireland] ii Table of Contents Chapter 1: Introduction 1.1 Introduction Page 1 1.2 Statement of Research Investigation Question(s) Page 3 1.3 Importance Page 5 1.4 Relevance Page 9 1.5 Methodological Foundation Page 11 1.6 Research Philosophy Page 23 1.7 Overview of Dissertation Framework Page 23 1.8 Original Contribution to Knowledge Page 27 1.9 Limitations of Study/Reflexivity Page 30 1.10 Theoretical Overview Page 31 1.11 Access to Justice Page 36 1.12 Conclusion Page 38 Chapter 2: History, Development and Exceptions 2.1 Costs follow the event Page 39 2.1.1 The Event Page 40 2.1.2 Interlocutory and discrete matters Page 42 2.1.3 The Doctrine of Mootness Page 43 2.1.4 Party and Party Costs and Lawyer Client costs Page 46 2.1.5 Rationale for Indemnity Costs Page 47 2.1.6 Roman Law Page 50 2.2 Costs at Common Law Page 51 2.2.1 Statute of Gloucester and beyond Page 53 2.3 Common Law and Equity Page 56 2.3.1 Supreme Court of Judicature Act and modern developments Page 57 2.4 Cost shifting Page 61 2.5 Rationale for the ‘loser pays’ philosophy Page 61 2.6 Private Attorney General and Relator Actions Page 66 2.7 Costs are discretionary Page 67 2.7.1 Equitable jurisdiction Page 69 2.8. Underwriting and cost inoculation Page 71 iii 2.8.1 The Legal Aid Globule Page 72 2.9 Qualified One – Way Costs Shifting (‘QOCS’) Page 74 2.10 Exceptions: Overview Page 78 2.10.1 Chancery Court Indemnities Page 83 2.10.2 Contested Probate Page 84 2.10.3 Sui Generis proceedings Page 90 2.10.4 Small Claims Procedure Page 91 2.10.5 Inquests and Coronial proceedings Page 93 2.10.6 Matrimonial and Family law Page 94 2.11 The American rule Page 97 2.11.1 Observance and development Page 99 2.12 Exceptions to the American rule Page 102 2.12.1 The Admiralty exception Page 104 2.12.2 Bad Faith Doctrine Page 107 2.12.3 Common Benefit Exception Page 107 2.13 Application of the loser pays rule in the United States Page 110 2.14 Conclusion Page 114 Chapter 3: Displacing the Costs Equilibrium 3.1 Introduction Page 115 3.2 The Justice-Related Test Page 117 3.2.1 The Core Principles Page 122 3.3 Disentitling behaviour Page 123 3.3.1 The Antonelli factors Page 125 3.4 Wasted Costs Jurisdiction Page 126 3.5 The rule in Ritter v Godfrey Page 132 3.6 Broader Public Interest Page 135 3.7 Irish Constitutional Law actions Page 136 3.7.1 Tragic cases Page 137 3.7.2 Heterogeneous categories Page 139 3.8 Test cases in Ireland Page 143 3.9 First subsidiary research question Page 144 3.10 Conclusion Page 148 iv Chapter 4: Complex Litigation 4.1 Introduction Page 149 4.2 Winners v Losers Page 150 4.2.1 Identifying the winner Page 152 4.2.2 The simple mechanical test Page 153 4.2.3 The ‘something of value’ test Page 154 4.2.4 Split Costs Orders & The Veolia Principles Page 156 4.2.5 Impression and evaluation Page 166 4.3 Section 168: Legal Services Regulation Act, 2015 (Ireland) Page 168 4.4 Loser pays: discounts in complex litigation Page 170 4.5 Res Judicata Page 171 4.6 Sanderson and Bullock devices Page 173 4.6.1 Statutory position in Ireland Page 176 4.7 Second and third subsidiary research questions Page 178 4.8 Conclusion Page 181 Chapter 5: Public Interest & Environmental Litigation 5.1 Introduction Page 182 5.2 Cost appropriation: base starting point Page 183 5.3 Advance /pre-emptive costs orders Page 184 5.4 Discretionary electives Page 187 5.5 Statutory position in Ireland Page 188 5.6 The special costs rule Page 189 5.7 Prohibitively expensive Page 190 5.8 A bona fide belief in the prospects of success Page 192 5.9 A certain measure of substance Page 196 5.10 Fashioning a cost agreement Page 198 5.11 Dichotomy of costs regimes Page 198 5.12 Aarhus compliance Page 199 5.13 Conclusion Page 200 Chapter 6: The Legal Services Regulation Act 2015 & Beyond 6.1 Introduction Page 201 6.2 Costs to follow event Page 203 6.3 Part 36 and the costs rules in Ireland Page 205 v 6.4 Mediation Costs: Who Pays? Page 216 6.5 Failure
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