Costs Adjudication Fairness: Duty to Address Documentary Deficiencies and to Consider Order 99 r.26(7) Direction Before Proceeding

1. Introduction

Nolan & Ors v Office of the Legal Costs Adjudicators of the High Court [2026] IEHC 337 is an ex tempore High Court (Phelan J) decision on an urgent application for (i) leave to seek judicial review and (ii) a stay of an imminent legal costs adjudication listed for the following day.

The applicants were the paying parties on two costs orders (High Court and Court of Appeal). The respondent was the Office of the Legal Costs Adjudicators. The applicants contended that the bill of costs and supporting materials did not comply with the statutory and rules-based regime governing adjudication—principally Order 99 of the Rules of the Superior Courts (“RSC”)—and that, without key invoices, time records, and VAT-related information, they could not fairly or meaningfully participate in the adjudication.

The application focused on the Chief Legal Costs Adjudicator’s decisions to allow the adjudication to proceed notwithstanding two applications to the adjudication office (by “Form 9”) identifying alleged documentary deficiencies.

2. Summary of the Judgment

  • Leave granted to bring judicial review on arguable grounds that the Chief Legal Costs Adjudicator:
    • failed to make a substantive determination on the Form 9 complaints concerning non-conformity with O.99, r.23 and the applicants’ ability to engage fairly;
    • failed to make (or consider making) an express direction under O.99, r.26(7) to accept a non-conforming bill for adjudication notwithstanding lack of conformity;
    • failed to take into account the September 2021 guidelines made under s.142 Legal Services Regulation Act 2015 (“the 2015 Act”), which O.99, r.19 requires adjudicators to have regard to.
  • Alternative remedies not an effective bar: despite statutory review routes, the Court held that (on the evidence) the applicants were not required to await an adjudication conducted amidst a significant information deficit.
  • Stay granted of the adjudication pending the judicial review, applying the interlocutory relief principles in Okunade v. Minister for Justice [2012] IESC 49; [2012] 3 IR 152.
  • The applicants gave an undertaking that if unsuccessful they would pay Courts Act interest on the ultimately adjudicated costs from the date of issuing the statement of grounds to the conclusion of the proceedings.
  • Costs were reserved, and directions were given for urgent notification and service.

3. Analysis

3.1 Statutory and procedural framework applied

The decision is grounded in the interlocking regime comprising:

  • Part 10, Legal Services Regulation Act 2015, including:
    • s.142 (guidelines);
    • s.154 (application for adjudication; form/manner consistent with the Act);
    • s.155 (adjudicator’s obligations: verify work done, appropriateness of charges, fair/reasonable amounts; ascertain nature/extent/value, who did the work, and time spent);
    • s.156 (powers);
    • s.157(7) (where a party neglects/refuses to provide documents and prejudice is likely, adjudicate as far as possible and potentially limit the defaulting party to a nominal amount);
    • s.160–s.161 (review mechanisms after determination).
  • Order 99 RSC, including:
    • O.99, r.19 (must have regard to guidelines under s.142);
    • O.99, r.21 (power to direct production of records/vouchers; other directions);
    • O.99, r.23(3) (documents that must accompany a party-and-party adjudication: prescribed bill, vouchers/invoices/receipts, records relied on, and time records meeting specified particulars);
    • O.99, r.24(1) (directions on return date/adjourned date to furnish further documents etc.);
    • O.99, r.26(7) (acceptance of non-conforming bills “where the Legal Costs Adjudicator so directs” and is satisfied about sufficiency for the paying party to assess/dispute and for the adjudicator to adjudicate);
    • O.99, r.27(8) (options where non-conforming bill is insufficient: adjourn and require new/amended bill, direct further information, or strike out without prejudice).

The Court treated these provisions, together with the September 2021 guidelines, as central to the procedural fairness of an adjudication, particularly where a paying party asserts it cannot properly “assess and dispute” the claim because essential material is missing or unreliable.

3.2 The core procedural fairness problem: proceeding without determining sufficiency

The applicants’ complaint was not merely that documents were missing, but that the missing and/or inconsistent material (invoices, time records, reconciliation issues, VAT information) made it impossible to engage “on a fair and informed basis” with a bill of approximately €3.2m spanning multiple firms/entities.

The High Court accepted that there was an arguable case that the Chief Legal Costs Adjudicator:

  • did not grapple substantively with the Form 9 applications identifying specific deficits; and
  • did not make an express r.26(7) direction to accept the non-conforming bill for adjudication, despite the rule’s structure (“where the Legal Costs Adjudicator so directs” and is “satisfied” as to sufficiency).

The decision thus emphasises a governance point: where non-conformity is squarely raised and said to impair participation, it is at least arguable that the adjudicator must address whether the bill is being accepted under r.26(7) (and why), or instead deploy r.24/r.27(8) powers to require further information, amend the bill, adjourn, or strike out as appropriate.

3.3 Guidelines as a mandatory relevant consideration (O.99, r.19)

The Court found an arguable ground that the Chief Legal Costs Adjudicator failed to take into account the office’s September 2021 guidelines (published under s.142)—particularly the guidance that, as a matter of fair procedures, documents relied upon should be made available in advance and that proof of work undertaken will usually require documentary proof.

The significance lies in O.99, r.19: adjudicators “shall have regard” to such guidelines. This elevates the guidelines beyond mere best practice; it supports review where a decision arguably fails to take account of them in circumstances where they bear directly on fairness and the capacity to dispute items.

3.4 Alternative remedies and the “exceptions” principle

A key threshold issue for leave was whether the applicants should be required to await the statutory review/appeal architecture after adjudication (notably s.160 and s.161 of the 2015 Act), or rely on the adjudicator’s own tools such as s.157(7).

Phelan J held that, on the evidence, those routes were not an effective alternative remedy in the particular circumstances: the complaint was about the fairness and feasibility of the adjudication proceeding at all while the alleged “information deficit” persisted. The Court considered that the post-adjudication review mechanisms presuppose a process conducted on a sufficiently complete factual basis.

3.5 Interim relief: why the stay was granted

Applying Okunade v. Minister for Justice [2012] IESC 49; [2012] 3 IR 152 (and the Campus Oil-derived approach), the Court:

  • found an arguable case;
  • identified the greatest risk of injustice as allowing the adjudication to proceed immediately, given the asserted inability to conduct meaningful review/reconciliation;
  • treated the applicants’ undertaking (Courts Act interest if unsuccessful) as relevant to mitigating prejudice.

The Court noted but distinguished the discussion of stays in major regulatory contexts in TikTok v. The Data Protection Commissioner [2026] IESC 27.

3.6 Precedents cited and their influence

  • LA v. The Chief Appeals Officer [2026] IESC 22
    Used as the governing authority on the alternative remedy doctrine: the “default position” is to use statutory appeals/reviews; judicial review is exceptional. The High Court relied on the exceptions described there—particularly where the alternative is not adequate or where exigency requires judicial review—to justify granting leave despite the 2015 Act’s review pathways.
  • Okunade v. Minister for Justice [2012] IESC 49; [2012] 3 IR 152
    Provided the framework for the stay: balance interests and “minimise injustice”, with Campus Oil principles adapted to judicial review and with some scope (in appropriate cases) to consider case strength.
  • Campus Oil Ltd v. Minister for Industry and Energy No. 2
    Cited via Okunade as the source of the traditional interlocutory injunction criteria, informing the stay analysis.
  • TikTok v. The Data Protection Commissioner [2026] IESC 27
    Considered as a potentially relevant modern authority on stays of administrative decisions; the Court found it did not materially affect the analysis in this costs-adjudication setting.

3.7 Likely impact

  • Greater procedural discipline in adjudications where non-conformity is alleged: the decision signals that it may be unlawful to proceed without addressing whether the bill is being accepted under O.99, r.26(7) and whether the paying party can realistically “assess and dispute”.
  • Elevated importance of the 2021 guidelines: by treating them as an arguably mandatory relevant consideration (via O.99, r.19), parties may rely on them to challenge “piecemeal” disclosure practices that undermine fair participation.
  • Earlier judicial oversight may be available in exceptional cases: notwithstanding s.160–s.161, a paying party may obtain judicial review leave (and a stay) where the asserted deficit goes to the fairness of the adjudication itself, not merely the correctness of the eventual amount.
  • Practical incentives: the acceptance of an interest undertaking suggests a pathway to balance prejudice to receiving parties where urgent stays disrupt scheduled adjudications.

4. Complex Concepts Simplified

Adjudication of costs
A statutory process where a Legal Costs Adjudicator assesses what costs are properly payable under a court costs order, applying the principles in the 2015 Act and Order 99.
Bill of costs and “supporting documentation”
The bill is the formal claim. Order 99 generally requires it to be accompanied by items such as invoices, vouchers/receipts, and (where relied upon) detailed time records so that the paying party can check and dispute the claim and the adjudicator can verify it.
Order 99, r.26(7): acceptance “notwithstanding lack of conformity”
A mechanism permitting an adjudicator to proceed with a bill that is not in the prescribed form, but only if the adjudicator directs acceptance and is satisfied the material is still sufficient for (i) the paying party to assess/dispute and (ii) the adjudicator to adjudicate.
Form 9
An internal application form to the adjudication office used to seek directions (including, potentially, a stay/adjournment) in advance of the substantive adjudication hearing.
Alternative remedy doctrine
Courts usually require parties to use statutory appeal/review routes instead of judicial review. However, where that route is not adequate or urgency/fairness requires it, judicial review may proceed.
Stay pending judicial review
A temporary pause of the impugned process to prevent irreparable or disproportionate unfairness before the judicial review is decided, assessed by balancing the risk of injustice (Okunade/Campus Oil principles).

5. Conclusion

[2026] IEHC 337 underscores that, where a paying party credibly contends it cannot fairly participate in a costs adjudication due to significant documentary deficiencies, it is at least arguable that the Chief Legal Costs Adjudicator must engage substantively with that complaint, must have regard to the statutory guidelines, and must expressly address whether the bill is being accepted under O.99, r.26(7) (or whether other directions/adjournment are required). In exceptional circumstances of urgency and asserted “information deficit”, the High Court may grant leave and a stay notwithstanding post-adjudication statutory review mechanisms.