Costs Adjudication Reviews: “Error + Unjust” Threshold, Non-Formulaic Reasons, and Comparators as Residual Sense-Check

Case: BC [A Minor] v Health Service Executive (Approved) [2026] IEHC 283
Court: High Court of Ireland
Judge: Mr. Justice Conleth Bradley
Date: 1 May 2026

1. Introduction

This judgment concerns the High Court’s review jurisdiction under s. 161 of the Legal Services Act 2015 (as amended) over decisions of the Chief Legal Costs Adjudicator (and, earlier, a Legal Costs Adjudicator) in a high-value clinical negligence action brought on behalf of a child. The underlying proceedings settled on terms (without admission of liability) providing, among other matters, for payment of 50% of damages (when assessed/agreed) and a €4 million payment on account. The costs order provided for adjudication of costs.

The challenged items were (i) the solicitor’s instruction fee (split across the post-2019 temporal categories), and (ii) senior and junior counsel brief fees. A second senior counsel fee was disallowed at first instance and that disallowance was upheld; it was not the focus of this review challenge.

2. Summary of the Judgment

The High Court refused the application for review. It held that the paying party failed to establish:

• an error of fact, law or principle in the adjudicator’s approach to the disputed items; and
• in any event, that the allowances were unjust within the meaning of s. 161(5).

The Court emphasised that s. 161(5) imposes a narrow intervention threshold: the applicant must show an error as to amount and that the determination is unjust. It also accepted that, under the 2015 Act, costs adjudication is not “mathematically formulaic”; adequate reasons do not require a mechanistic explanation of precisely how each statutory factor translates into a specific euro figure.

3. Analysis

3.1 Statutory framework applied

The judgment is anchored in the structure of Part 10 of the 2015 Act:

• s. 155: matters to be ascertained (including verification of work done, appropriateness of charging, fair and reasonable charge, and reasonable incurrence; plus ascertaining nature/extent/value, who did the work, and time taken “so far as reasonably practicable”).
• Schedule 1: the governing principles—costs reasonably incurred and reasonable in amount—plus a non-exhaustive list of reasonableness factors (complexity/novelty, skill, time, documents, value, urgency, research, experts, etc.).
• s. 157: determination and discretion to confirm or determine a different amount.
• s. 160: “consideration” (a reconsideration/review by the adjudicator).
• s. 161: High Court review; particularly s. 161(5), the gateway test.

Procedurally, the review was also brought by reference to O. 99, r. 38 of the Rules of the Superior Courts 1986 (as amended).

3.2 Precedents cited (and how they shaped the decision)

A. The review threshold: error plus injustice

• Superquinn Ltd v Bray UDC (No 2) [2001] 1 I.R. 459 (“Superquinn”)
  Used to highlight that the statutory review jurisdiction (in the 1995 Act and now in s. 161(5)) is narrower than the former broad discretion under O. 99; it frames review as exceptional, not a rehearing on the merits.
• Cooper v An Bord Pleanála [2024] IECA 253 (“Cooper”)
  Relied on for confirming the two-limb structure of intervention: the applicant must demonstrate (i) error as to amount, and (ii) resulting injustice.
• Bloomer v Incorporated Law Society of Ireland [2000] 1 I.R. 383 (“Bloomer”)
  Provides the classic articulation of “error” on costs review (excessive regard to an irrelevant factor; insufficient regard to a significant factor; or error of law/jurisdiction) and the restraint principle: even if an error is identified, the court should not interfere if the resulting figure falls within a reasonable range and is not unjust.
• HM v SM [2018] IECA 396 (“HM”)
  Cited for the meaning of “unjust”: more than disagreement with the amount; it requires a more substantial misstep, and appellate restraint on findings of fact absent manifest error or error in approach.
• Diaz v Lohan [2023] IEHC 292
  Noted as an example of the High Court applying the modern s. 161 methodology informed by Sheehan and HM.

B. Methodology for assessing omnibus instruction fees (and limits of “scientific” valuation)

• Sheehan (an infant) v Corr [2017] IESC 44, [2017] 3 I.R. 252 (“Sheehan”)
  Central in two ways: (i) the Supreme Court’s endorsement of a methodology that starts with identifying the work done (including time spent) before weighing relevant factors; and (ii) its observations on comparators as a “sense check” (obiter, but influential). The High Court also drew on Sheehan to underline the structural difficulty with narrative bills culminating in an omnibus instruction fee, and that the remedy is legislative, not judicial.
• C.D. v The Minister for Health and Children & Ors [2008] IEHC 299 (“CD”)
  Used for two connected propositions: (i) reasons must be adequate but need not be discursive; and (ii) in the absence of time-costing, it is usually impossible and undesirable to value each sub-item within an omnibus instruction fee.
• Buckley v O'Neill [2023] IECA 288 (“Buckley”)
  Cited (via Sheehan) to clarify that “root and branch” review applies to items actually in dispute, not an inquisitorial trawl through every item.

C. Adequacy of reasons (and context-dependent sufficiency)

• Connelly v An Bord Pleanála [2018] IESC 31; [2021] 2 I.R. 752 (“Connelly”)
  The court adopted the “middle ground” approach to reasons: more than a perfunctory conclusion, less than a full judgment; adequacy depends on context, including the extent of party participation and whether reasons are readily ascertainable from the decision and its referenced materials.
• Mulholland v An Bord Pleanála (No.2) [2006] I.R. 453
  Referenced in the adjudicator’s consideration for a structured statement of what reasons must achieve (enabling decision whether to appeal/review; arming the party; demonstrating the decision-maker addressed mandatory matters; enabling court review).

D. “Not an exact science”

• Doyle v Deasy [2003] IEHC 617
  Quoted (in the adjudicator’s consideration) for the proposition that costs adjudication is not an “exact science”. The High Court accepted this characterisation as consistent with the statutory design: the 2015 Act mandates factors but does not supply a conversion formula from factors to a number.

E. Comparator decisions referenced in argument

The paying party relied heavily on comparator schedules (including taxed/adjudicated and settled costs), and individual comparators were mentioned in the judgment’s review of the adjudicator’s analysis, including: CT v The Guardians and Directors of the Coombe Lying-in Hospital, BG v The Children's University Hospital, and ZEM (A Minor) v. The Governors and Guardians of the Hospital for the Relief of Poor Lying in Women. The Court’s key doctrinal point, however, was not to establish a “comparator tariff”, but to approve the adjudicator’s treatment of comparators as a residual check after applying statutory criteria.

3.3 Legal reasoning: what the Court actually decided

A. The scope of s. 161 review is deliberately narrow

The Court treated s. 161(5) as a stringent gateway. It is not enough that the High Court might have fixed different figures, nor that an applicant can identify arguable imperfections in reasoning. The applicant must show an error as to amount and that the result is unjust. This was reinforced by the Court’s adoption of the Bloomer and HM restraint principle: if the allowance falls within a range reasonably open to the adjudicator, intervention is not justified.

B. Reasons: no duty to provide a “conversion formula” from factors to euros

The paying party argued there was a “gap” between acknowledging the statutory factors and producing a number. The Court rejected this as a basis for intervention. It accepted that the adjudicator (in determination and consideration) provided reasons that met the functional tests in Connelly and CD.

Critically, the Court endorsed the adjudicator’s point that the 2015 Act:

• requires consideration of multiple factors,
• does not prescribe a hierarchy or weightings, and
• does not require a numerical breakdown (e.g., allocating percentages to complexity, documents, urgency, etc.).

C. Comparators: valuable, but secondary to statutory analysis

The Court approved the adjudicator’s approach of using comparators as a residual “sense-check” (consistent with the obiter observations in Sheehan), rather than as an alternative methodology that could displace the primary statutory inquiry under s. 155 and Schedule 1.

It also accepted the adjudicator’s explanation of comparator limits:

• Settled costs are difficult to treat as true comparators because settlement drivers vary.
• Reports/decisions in other cases cannot replicate the adjudicator’s “root and branch” review of the full file in the case under adjudication.
• Tabular summaries tend to map imperfectly onto the statutory factors, and cannot objectively measure “complexity/novelty”.

On the CPI point, the Court accepted that CPI/inflation discussion did not introduce a non-statutory criterion; it was part of the comparator “sense-check” after the statutory assessment had been conducted.

D. Complexity/novelty and the “test case” characterisation

The Court rejected the complaint that complexity/novelty had been overstated. It pointed to the adjudicator’s detailed re-review of the file and expert evidence, including conflicting expert views, and accepted the adjudicator’s position that settlement without admissions did not diminish the assessment of complexity/novelty “as pleaded” if the case had proceeded.

3.4 Impact

• Stability of adjudications: The judgment supports finality by reaffirming that s. 161 review is not a de novo revaluation exercise; applicants face a high burden.
• Reasons in costs decisions: It endorses a pragmatic standard: reasons must be intelligible and reviewable, but adjudicators are not required to provide pseudo-mathematical derivations of figures where the statute provides no formula.
• Comparator evidence: The judgment legitimises comparator use as a “sense-check”, while limiting attempts to turn comparator schedules into a quasi-tariff capable of driving review outcomes.
• Practical litigation behaviour: Paying parties may need to focus objections on demonstrable methodological errors (ignored significant factors, reliance on irrelevant factors, misapprehension of evidence) rather than arguing that a figure is “too high” compared with a schedule of other cases.

4. Complex Concepts Simplified

• Instruction fee (solicitor): Often an omnibus professional charge covering a large body of preparatory and case-management work, rather than item-by-item hourly billing. The Court accepts that the law does not require each micro-task to be priced.
• Brief fee vs refresher (counsel): A brief fee typically covers preparation and the first day; refreshers cover additional days. Here, the adjudicator treated the split as largely “form over substance” given settlement timing and work profile, allowing global brief fees.
• Consideration (s. 160): An internal reconsideration by the adjudicator of the original determination—described in the judgment as effectively reconsidering “everything again”.
• Review (s. 161): A High Court challenge that succeeds only if there is an error as to amount rendering the result unjust. It is not enough to show the High Court would have awarded a different sum.
• Comparators: Other cases’ costs outcomes used to benchmark reasonableness. They are not binding and, per this judgment, function best as a final check, not as a substitute for statutory analysis of the actual file and work.

5. Conclusion

BC [A Minor] v Health Service Executive (Approved) [2026] IEHC 283 consolidates three practical propositions in Irish costs adjudication law:

• The s. 161(5) threshold is conjunctive and strict: an applicant must show both error and injustice.
• Reasons need not be formulaic: where the statute prescribes factors but no conversion methodology, adjudicators are not required to quantify how each factor produces a specific euro outcome, provided the reasoning is adequate in context.
• Comparators are a residual sense-check: useful, but secondary to the adjudicator’s statutory assessment of the specific case file and context.

The result is a strong affirmation of adjudicator discretion within the statutory framework, coupled with a clear message that High Court review will remain exceptional and tightly policed by the “error + unjust” standard.