COUNTY REGISTRAR

lakeslady

Hi Everyone
I hope you'll bear with me on this question as I'm not au fait with the workings of the Irish legislative procedure. I just need a little clarification on a particular matter so that I can help a couple of friends of mine who are having a really stressful time dealing with a court matter.

Cutting a long story short, last June (2017) a Court Order drawn up in the Circuit Court, stated "That the Plaintiff (my friends) do recover from the First Named Defendant all costs incurred since (date) when taxed and ascertained".
Last week my friends discovered,purely by chance, that their Solicitor, together with the Defendant's Solicitor, had had a meeting with the Registrar and my friends were informed by their Solicitor that they would only be receiving 2/3rds of their total costs. They discovered this as a result of the husband phoning the Solicitor last week for an update - which is always the case, if he wants to know what the current situation is; (this case has been dragging on for over 5 years now and they have still not received a penny); they had no prior warning or information about this meeting, other than that their Solr was seeing the Registrar to have the award taxed. My questions are these:
a) can a Registrar change the amount of an award decided by a Judge - NB the Order said "all costs incurred..." (seems to negate the point of going to Court?)? How can Registrar over-rule a Judge?
b) If he/she can, does the formal agreement of the Plaintiff have to be sought to any such amendment or does the fact that their Solicitor attended a meeting with the Registrar signify their de facto agreement? Does this apply even if the Plaintiff was not given full information of the content of the meeting beforehand?
c) If the Plaintiff doesn't agree to the amendment, does the case have to go back to Court?
My friends are simple people who don't understand the machinations of litigation and it's clear to me that they employed a Solicitor (a) because they had to and (b) on the basis of "this is the problem, we're employing you to sort it out and we're trusting you to do so". They haven't asked questions which they probably should have but that's because they didn't know the questions to ask. But any Solicitor worth their salt should, to my mind, have very quickly recognised the fact that they were the type of folk who needed everything explaining to them in the simplest terms. Having read (what little) correspondence was received from their Solicitor, it is clear to me that this has not been the case. So basically things have occurred which have gone straight over their heads and now they're suffering so much stress (they are elderly people who are not wealthy) and it really annoys me that their Solicitor has let things drift on and not made matters plain.

Sorry for the rambling folks; i just can't stand poor professional service (and my Son's a barrister!! - in the UK)

hullaballoo

It's not clear to me where the issue arises. Is it that there was a decision of the Court in favour of your friends, together with costs and now thet solicitor is seeking to charge your friends above-and-beyond what was ordered?

Or is it that your friends simply don't understand what costs are covered by the court order and what costs are payable by them?

If no money has changed hands, perhaps it is for now a moot point?

lakeslady

Thanks for your response hullabaloo. Apologies if my question wasn't clear,I'll try to simplify it. Basically,
1) The Court ruled in favour of my friends and awarded them full costs against the Defendant.
2) Their Solicitor had a meeting with the Registrar, ostensibly to have the costs taxed but instead of their normal Solicitor attending the meeting,the senior partner of the firm went.
3) Also at that meeting was the Defendant's Solicitor.
4) Although my friends were told they had the option to attend,they were simply told they could,but it wasn't obligatory. They were also told the Registrar could increase or decrease costs.
5) Following a telecon with their Solicitor,the Solicitor told them they would only be getting 2/3rds of their costs ( as opposed to the whole costs which they had been awarded under the C.O.
6) They were not given the info under (2) and(3). Nor were they given full details of the potential discussions which might take place at that meeting.
Questions:
Can a Registrar change the amount of costs ordered by a Judge ( C.O. awarded ALL costs)?

Peregrinus

The judge doesn't order an amount of costs; the judge just orders costs, and the amount is determined later, if not by agreement then by a contentious process called (rather confusingly) taxation.

The basis on which costs are measured on taxation is fairly restrictive. Almost invariably, when you win a court case and are awarded costs, if the parties fail to agree costs and they are determined by taxation, the amount of costs awarded to the winning party is less than what your their solicitor actually charges, and there is a shortfall they have to make up themselves. And since both sides know that this is what will happen if the costs are taxed, this influences an agreement on costs. The losing party will not agree to pay more in costs than they think would be awarded against them on taxation, and the winning party knows that it is useless to try to make them.

So, it crucially matters here whether (a) the court order was varied to say that the loser need only pay two-thirds of the cost, whcih would be unusual, or (b) the two sides lawyers agreed an amount of costs which was about two-thirds of what the winning lawyers were actually charging, which would be perfectly normal, and something the clients should have been told to expect from the outset.

lakeslady

Good Morning Peregrinus
and thank you for your reply, which is immensely helpful. Might I seek a little more of your help please?

The Court Order has not been varied in any way from the original, which awarded all costs to my friends. My questions:

a) You say the amount (of costs) is determined later either "by agreement" or via the taxation process. Am I correct in thinking that any agreement would have to directly involve their Solicitor formally seeking and receiving their agreement?
b) Are there any circumstances, in law, where a Solicitor could agree an amount of costs whilst knowingly not have sought the agreement of his client prior to any meeting with the Registrar?
b) If,as seems to be the case, their agreement was not sought at any stage following the C.O. does taxation automatically ensue? (I confess here,I don't see how it can since, based on your response , taxation only occurs where the parties fail to agree)
c) And if agreement was not sought from the client, where does that leave my friends?

Many thanks for your time and help on this; it is appreciated.

Peregrinus

Solicitors act on behalf of their clients. An agreement by the parties' solicitors is, as far as the courts are concerned, an agreement by the parties themselves. It binds the parties.

If the solicitor has made an agreement that he wasn't authorised to make, the clients are generally stuck with it, but of course they may have a remedy against their solicitor.

But I think what's going on here is almost certainly a result of poor communications. It's important to understand that, even though the court awarded them full costs, there was never any likelihood that your friends would not have to pay some of their own costs because, as already explained, the court's measurement of "full costs" generally falls well short of the actual costs incurred. This should have been made clear to your friends early on.

So, the solicitor went and agreed an amount in respect of costs. Has this cost your friends money? Well, if the amount he agreed is more or less what they would have got if they had had the costs taxed, or falls short of it by less than the extra expense they would have incurred in going to taxation, then no, it hasn't cost them any money. It may have surprised and disappointed them, if their expectations were not properly managed, but they are not any worse off than they would have been if they had rejected the suggested agreement, and gone to taxation. They may in fact be better off.

On the other hand, if he has agreed to accept less costs than they would have got on taxation even allowing for the additional expenses of taxation, then they are worse off. Now we have to ask whether he had authority to agree this. They think they never authorised their solicitors to do this, but they need to go back and read the correspondence they got at the start of the proceedings, including the letter they (should have) got which dealt with the whole question of costs. The matter may be covered in that letter, and they may simply have failed to appreciate it at the time, or to recollect it now.

randomrb

To clarify are your friends being asked to make up the difference in the costs? if they are and then there may be an issue if not it won't affect the money they get so whats the issue?

Costs get altered all the time, if the case is on a "no foal no fee" basis then it is effectively no concern of the clients and it is for the solicitor to get what they can. Costs are taxed to ensure fairness so its not unusual that they are changed.

lakeslady

Thanks once again for your help Peregrinus.

The only letter I have seen (my friends have provided me with all the letters which they say they hold from their Solicitor over the course of the 3 years in which the firm has been acting for them) which refers to costs, simply outlines "the factors taken into account in charging legal services payable by you, the Client (but ultimately recoverable in whole or in part from the Defendant( as follows...."
The letter then continues to detail the various elements which can give rise to costs viz; Time spent;miscellaneous and sundry expenses; VAT;Items of outlay; Payment and Lodgment of Monies.
Apart from the reference to the sentence in brackets above ("but ultimately etc.etc...) there is no reference/explanation or detail regarding taxation/agreement etc of any csts awarded.
There are only 2 earlier letters than this one and neither contains any reference to costs/taxation/Registrar etc.

I have been looking through the corres and there is a letter dated 20/3/17 in which the Solr says she has issued a Summons to Tax "which is a Summons to meet with the County Registrar to agree party costs;this will be dealt with on 16/4/17. There will be no need for you to attend but should you wish to attend you might let me know" The letter contains nothing else.
A later letter dated 4/4/17 states:"I have been liaising with the Circuit Court office to see when this matter can finally be before a Judge. It was with the County Registrar again on 20/3/17 and he placed it on a Judge's list for the next Judges Motion date".

So, does this mean that the amount of any costs are agreed before it goes before a Judge? (I am totally confused here so heaven help my friends!!). If not, what is the Registrar's involvement before a case gets to Court?

I'm afraid, having read the Solicitor's various letters, they are not worded in what I would consider a user-friendly manner. It has become very quickly apparent to me that my friends are people who have limited intelligence and understanding where legal matters are concerned. That surely should also have been apparent to their Solicitor who surely had a duty to ensure that everything was explained to them in a way in which they (and not just she) understood.

If you have any further observations do please feel free to voice them.

randomrb

You may be getting mixed up. When costs are "taxed" they are assessed by an official to ascertain if they are fair costs and a final figure is given. In this case the process of being taxed reduced the costs to 2/3rds unless your friends solicitors have asked them to make up the shortfall there is no issue here

lakeslady

randonrb,

"the issue" here is very much that here are 2 people who have been to Court, whereupon the Judge has ordered that they "do recover from the Defendant all costs incurred since (date) when taxed and ascertained".

They have now been told by their Solicitor that rather than receiving payment (for which they have now been waiting over 5 years) from the Defendant of all their costs, they will in fact only be getting 2/3rds of those costs.

They have had no explanation from their Solicitor as to why the figure has been reduced; the have had no prior notification that any meeting was taking place with the Registrar and that such meeting could result in the costs figure being reduced.

They were not consulted in any way which would have allowed them to have made an informed decision regarding attendance at such meeting, nor, was their agreement to any reduction/amendment to the figure sought.

I hope that makes matters clearer for you.

randomrb

The point is that they would never have received the costs of the case as they are as stated "costs" and therefore they cover the expenses.

The costs that result from any trial pay the solicitors, barristers, experts and any other outgoings. If there was an award of damages then your friends get that or whatever the judgement was for.

"do recover from the Defendant all costs incurred since (date) when taxed and ascertained"

What that effectively means is that the other side pay all the legal costs of the trial, your friends have nothing to do with it and it is up to their solicitors to get paid from the other side.

If your friends have been paying for all the above, which is unlikely in any trial, at each step then it is a more complicated matter but they should still be reimbursed by either the other side or anyone they paid over what the taxing master said was appropriate

Peregrinus

But they didn't think, did they, that simply because they (or their lawyers) asked for a particular figure, they were going to get it?

That's not how it works. There's a negotiation process leading (hopefully) to an agreement on the figure for costs. If there's no agreement there's a process for getting a court official to fix them called, as already mentioned, taxation of costs.

What happened here seems normal enough. They got an award of costs. Their lawyers put a figure on the costs sought; the other side objected to the figure; discussions ensued; eventually an agreement was reached.

It does seem as though there was some failure in communication, since your friends clearly didn't understand the process they were involved in. But unless this has cost them money, I don't think they have any remedy. It's not clear from what you say that it has cost them money.

Do they think it has cost them money? If so, why?

lakeslady

Peregrinus,
each time their Solcitor has presented them with a bill for Solicitor costs, m friends have paid it in full. This despite the Solcitor stating in a letter dated 31/1/17:
"However,...in your case, we will instead defer all fees until the conclusion of the case"
And yet, in a letter dated 2/8/17 she states "...I enclose our fee note in respect of al work done to date on this file. I look forward to receipt of payment in respect of this in due course".

My friends have paid out almost €25k which includes Solicitor fees together with other costs (case involves a land dispute, which dispute the Judge also ruled in favour of my friends).

randomrb

That is an unusual situation. In that case they need to ask for the taxing Masters report which should itemise all expenses, your friends may be due a refund from the solicitors/barristers that they have paid if they charged more than the final costings.

At this stage your friends need to arrange an appointment with their solicitor and get them to set out there position, these issues may come down to miscommunication as Peregrinus says

lakeslady

randomrb,
thanks for your response. I am about to arrange a meeting (which I suspect will be a long one!!) with the Solicitor (and obviously my friends, since they are her clients) where I want to clarify exactly what has gone on and what they have and have not been told.

Are the Taxing Master and County Registrar different persons? I thought (but I may have misunderstood) that the Taxing Master only came into play in High Court cases?
They haven't been officially informed by their Solicitor yet that this meeting with the County Registrar took place, or what resulted from it (it happened almost 2 months ago) - they only found out because one of my friends phoned the Solr for an update (they rarely receive updates, written or verbal; they have to seek them themselves 99% of the time). So can they still ask for this Taxing Master report?

hullaballoo

You are right, Taxing Masters are for the High Court but the taxation process is still available in the Circuit Court and heard by the County Registrar. These are semantics around the names, though.

For your purposes, the County Registrar is the taxing master.

lakeslady

Many thanks for the clarification hullabaloo.

This is what I mean about the average layperson (and I include myself in that description) not being familiar with litigation matters, including jargon, which many Solicitors use without realising that Joe public does not understand and without bothering to explain!

hullaballoo

Well, glad to assist where we can.

Just to point out that I don't think the solicitor is deliberately trying to confuse or obscure what's going on - but it is quite common for solicitors to talk to their clients assuming a level of understanding of matters that isn't always there. It's easily done too and difficult to prevent.

From a real-life example of my own, I went with my partner to her solicitor to discuss her case a few years ago. The solicitor, a very friendly man and one who my partner has known in a personal capacity most of her life, explained what was on the table in plenty of detail and made it very clear (to me!) what the options and risks were. My partner is a very intelligent woman but your man might as well have been speaking Swahili because when he left the room, she plainly turned to me and said "what exactly did he just say?"

Unless you're brave enough to speak up and let someone know you haven't understood them, and it does take courage, then you may find yourself flying blind.

lakeslady

And I suspect, unfortunately, that that's what has happened here...

I do find that the legal profession do operate in this fashion, ie assuming understanding even when using legal jargon and expressions when in fact, if they put themselves in the position of ther clients (which shouldn't be hard to do) they would see that that isn't the case at all.
For example, I am a retired HM Inspector of Taxes (UK); I rather doubt if I started talking to a Solicitor about the specialist subject I dealt in, using "in-house" language, they'd be lost. So why don't they think likewise when talking to clients? It isn't rocket science.
We shall see what the meeting brings....

lakeslady

Hello again Everyone,


might I ask a further question please? I suspect that my friends were, in their naivety, expecting to get back everything they paid out. So far, they have paid the following sums:


Barrister Fees €2214
Solicitor Fees €4735.50
Land Registry Fees €250.00
Stamp Duty €75.00 (re Motion & Affidavit to re-enter)
Comm. for Oaths Fee €20.00
Engineer Fee €1845.00
Surveyor Fee €430.50


In addition, they paid €3000 to erect new boundary fence following Court decision.
They also paid €12000 to the previous Solicitor handling the case but some of this figure may be outlays as opposed to Solicitor costs , I am awaiting details.


I wondered if anyone was able to tell me please, which of these amounts would be likely NOT to be allowed if costs are subject to taxation?


Peregrinus, in yours (No: 6) you referred to a letter "they (should have) got which dealt with the whole question of costs". As my response indicated, the only letter which I have seen relating to costs, did not contain any information regarding the procedure for arriving at an agreed figure or anything about taxation etc.


randomrb, sorry but I didn't understand your message (No 11) saying "the point is they would never have received the costs of the case as they are as stated "costs" and therefore they cover the expenses". Can you clarify please?
You also went on to say that they "should still be reimbursed by either the other side or anyone they paid over what the taxing master said was appropriate". So just so I've understood you correctly, are you saying that if, for example they paid (say) €10k legal fees plus engineers/surveyors fees (say) €5000, but the taxing master only allows them €12000 total, they can claim the balance (€3000) from the Defendant? How would they do that please?


Many thanks for your continuing help.

4ensic15

lakeslady wrote: »

So just so I've understood you correctly, are you saying that if, for example they paid (say) €10k legal fees plus engineers/surveyors fees (say) €5000, but the taxing master only allows them €12000 total, they can claim the balance (€3000) from the Defendant? How would they do that please?


Many thanks for your continuing help.

You have got this wrong. The Defendant is the paying party. If the taxation only allows 12k, that is all the Defendant has to pay. The balance of 3k has to be either written off by their own solicitor or paid by themselves, or some compromise arrangement reached with their own solicitor.

lakeslady

Thank you 4ensic15.

I did think it odd that anything over and above the "taxed" figure would simply be payable by the other side but took what randomrb said at face value ("they should still be reimbursed by the other sde or anyone they paid over and above what the taxing master said was appropriate").

I note the correct position, thank you.

4ensic15

lakeslady wrote: »

Thank you 4ensic15.

I did think it odd that anything over and above the "taxed" figure would simply be payable by the other side but took what randomrb said at face value ("they should still be reimbursed by the other sde or anyone they paid over and above what the taxing master said was appropriate").

I note the correct position, thank you.

There would be no point to taxation at all if what randomrb said was the case. It often happens that someone wants extra consultations or contacts the solicitor for a progress report. The taxing master/county registrar won't always allow the costs of that and the other side won't have to pay it. The order for costs means all costs necessarily incurred, not all costs actually incurred. Someone might engage a barrister who seeks a higher than brief fee because of the reputation of that barrister. In that case, all of the fee might not be allowed on taxation. The extra is regarded as a "luxury".