“Costs of the adjudication” include the 8% adjudication court fee; adjudicators cannot reopen Section D allowances post-determination despite an un-beaten tender

Case: Melia v Health Service Executive (Approved) [2026] IEHC 418

Court: High Court of Ireland  |  Judge: Mr Justice Cian Ferriter  |  Date: 1 July 2026

Procedure: Case stated by the Chief Legal Costs Adjudicator under s. 159(1) Legal Services Regulation Act 2015

1) Introduction

This judgment addresses two recurring issues in Irish legal costs adjudications under Part 10 of the Legal Services Regulation Act 2015 (the “2015 Act”) where a paying party makes a lodgment or tender in satisfaction of costs under s. 154(10) and Order 99, rules 57–61 of the Rules of the Superior Courts (“RSC”), and the claiming party proceeds to adjudication but fails to beat the lodgment/tender.

The underlying proceedings were medical negligence proceedings settled for €1 million plus costs, with costs to be adjudicated in default of agreement. The defendant (a public health body) made a tender of €445,204.72 (incl. VAT). The adjudication allowed €443,637.62 (incl. VAT) for solicitor and counsel fees, meaning the plaintiff did not beat the tender.

The CLCA sought the High Court’s opinion on:

  • Whether “costs of the adjudication” (Order 99, r. 60; and the enabling provision s. 154(10)(f)) includes the approximately 8% court fee payable on adjudication under the Supreme Court, Court of Appeal and High Court (Fees) Order 2014 (SI 492 of 2014), as amended (the “Fees Order”).
  • Whether, given the finality of an adjudicator’s determination under s. 158(1), an adjudicator has power to adjust/amend a prior allowance under Section D of the Bill of Costs (post-trial items including adjudication-related items), where tender/lodgment details cannot be disclosed until after determination.

2) Summary of the Judgment

Answer to Question 1: “Costs of the adjudication” includes the 8% adjudication court fee

The High Court held that the phrase “costs of the adjudication” in s. 154(10) of the 2015 Act (and therefore in Order 99, r. 60 RSC) bears its plain meaning and includes court fees incurred as part of the adjudication process, including the 8% fee charged under the Fees Order.

Answer to Question 2: No jurisdiction to amend Section D allowances post-determination

The High Court held that, subject only to s. 160 (consideration by the adjudicator), s. 158(1) makes an adjudicator’s determination final. Accordingly, an adjudicator does not have jurisdiction to revisit and amend Section D allowances after a determination, even if (once the tender is revealed) it becomes apparent that certain Section D items relate to post-tender adjudication work that, in principle, should not be recoverable from the paying party under the tender consequences regime.

3) Analysis

3.1 Precedents cited (and their role)

  • Heather Hill Management Company CLG v An Bord Pleanála [2022] IESC 43; [2024] 2 IR 222 and A, B and C (minor) v Minister for Foreign Affairs [2023] 1 ILRM 335: cited for the modern Irish approach to statutory interpretation—language is the starting point, but must be read with context and purpose; none of language/context/purpose is excluded. The High Court applied this framework to interpret “costs of the adjudication”.
  • DPP v Judge McGrath [2021] 3 IR 785: relied upon for the principle that subordinate rules cannot “transplant or amend” the meaning of primary legislation. This supported the Court’s approach to interpret s. 154(10) on its own terms rather than allowing possibly inconsistent phrasing in Order 99 to drive the statutory meaning.
  • Thompson v Curry [1970] IR 61: invoked (by the plaintiff) for the proposition that rules of court cannot require what legislation does not permit. This bolstered the conclusion on Question 2: Order 99 cannot be read as creating an implied power to reopen a “final” determination contrary to s. 158(1).
  • HJ Ward LLP v Chief Legal Costs Adjudicator [2025] IEHC 150: considered but found not materially helpful because it concerned the 14-day time limit under s. 160(1), not an implied post-determination power to amend for tender consequences.
  • DC v McEntee & O'Doherty Solicitors (OCLA:2021:447): an adjudication determination where CLCA Magee reasoned (in an own-client context) that “costs of the adjudication” did not include the 8% court fee, relying on Order 99, r. 32(5)’s distinction between adjudication costs and court fees. Ferriter J (obiter) indicated disagreement with that method where it uses rules to define the statute’s meaning.

3.2 Legal reasoning

(A) Question 1: Interpreting “costs of the adjudication”

The Court’s reasoning proceeds in three steps:

  • Plain meaning: “Costs” ordinarily means money charged or incurred in relation to something. In an adjudication, that naturally includes both professional fees and court-imposed fees that arise only because adjudication proceeds to determination.
  • Statutory context within Part 10: Although “costs of the adjudication” is undefined, the Court treated s. 138’s definition of “legal costs” as strongly informative about the breadth of “costs” within the statutory scheme. “Legal costs” include “fees, charges, disbursements and other costs”. On this logic:
    • court fees are comfortably within “fees” or “charges” (and, in practical terms, are routinely treated as recoverable costs items); and
    • there is no textual basis to shrink “costs” to solicitor-only items (e.g. preparation/attendance) absent express words.
  • Consistency with the tender/lodgment regime: The statutory purpose of enabling rules to allocate liability where a tender/lodgment is successful would be undermined if the largest adjudication-related cost (the 8% fee) were excluded from “costs of the adjudication”.

A notable feature of the judgment is its rejection of the argument that the Oireachtas would have used more expansive language (“costs and expenses”, “legal costs”, or “costs plus court fees”) if it intended to capture court fees. The Court treated such formulations as potentially redundant in a scheme where “costs” already encompasses fees/charges/disbursements.

(B) Question 2: Finality under s. 158(1) and the absence of an implied amending power

The Court accepted there can be an apparent practical anomaly: the adjudicator’s determination may include Section D items for adjudication work that—once a tender is revealed—should, in principle, fall on the claiming party after the tender date under Order 99, r. 60.

However, the Court held that the solution cannot be an implied adjudicator power to amend the determination, because:

  • Section 158(1) is unequivocal: a determination “is final” subject only to s. 160. The Court refused to imply an additional exception for tender/lodgment scenarios, characterising that as impermissible judicial legislation.
  • Structural coherence of Part 10: the Act provides specific mechanisms for reconsideration/review (notably s. 160). It does not treat determinations as provisional pending tender consequences.
  • Order 99 r. 57(4) confidentiality does not generate jurisdiction: the rule that a tender/lodgment is not disclosed until after the adjudication is determined cannot create a statutory power that s. 158(1) does not contain.

The Court signalled that if the regime yields unfairness, the remedy lies in legislative or rules reform (e.g. introducing discretion), not reinterpretation of “final” in s. 158(1).

3.3 Impact

(A) Practical consequences for parties

  • Claiming parties face increased downside risk in rejecting tenders: failure to beat a tender now clearly exposes them to liability for the paying party’s “costs of the adjudication” including the 8% adjudication court fee (subject to the r. 60 temporal split).
  • Paying parties gain stronger tender leverage: the 8% fee can be substantial, and its inclusion makes the tender/lodgment regime more potent in steering parties away from marginal adjudications.

(B) Institutional and doctrinal consequences

  • Clarification of statutory meaning over rule-based gloss: the Court’s approach (including its obiter comments) suggests that where “costs of the adjudication” appears in the 2015 Act, its meaning should be determined primarily from the Act’s language and scheme, not from drafting nuances in Order 99.
  • Confirmed rigidity of finality under s. 158(1): adjudicators cannot “true up” Section D allowances post hoc to reflect tender outcomes. This may prompt greater reliance on s. 160 “consideration” applications (where available and appropriate) and/or calls for reform to address the “Section D anomaly”.

4) Complex Concepts Simplified

  • Adjudication of costs (Part 10, 2015 Act): an official process whereby a Legal Costs Adjudicator determines what legal costs are properly payable when parties cannot agree.
  • Lodgment / tender in satisfaction of costs (s. 154(10); Order 99, Part XII): a paying party can pay money into court (lodgment) or make an offer (tender). If the claiming party proceeds and does not do better on adjudication, cost consequences follow automatically.
  • “Costs of the adjudication” (Order 99, r. 60): the costs attributable to the adjudication process. This judgment holds that it includes the Fees Order’s 8% adjudication court fee.
  • The 8% adjudication court fee (Fees Order, Part 6A): a court fee calculated by reference to the total amount confirmed on adjudication (with certain credits). It is payable because adjudication proceeds to determination.
  • Section D (Appendix W, Part 1): bill items for “costs incurred subsequent to trial”, including preparing the bill and attending the adjudication; these items can be allowed as part of the overall adjudicated sum.
  • Finality and “consideration”: s. 158(1) makes the adjudicator’s determination final (taking effect after 20 days), but s. 160 allows a party to seek “consideration” of decisions on matters/items within strict time limits.

5) Conclusion

Melia v Health Service Executive (Approved) [2026] IEHC 418 establishes two key points of costs adjudication law under the 2015 Act:

  • “Costs of the adjudication” in s. 154(10) and Order 99, r. 60 includes the 8% adjudication court fee under the Fees Order.
  • Despite the tender/lodgment regime and the confidentiality of tenders during adjudication, s. 158(1) means an adjudicator’s determination is final (subject only to s. 160), and the adjudicator cannot amend Section D allowances after the determination to reflect a subsequently revealed successful tender/lodgment.

The combined effect is to strengthen the economic incentives behind tenders/lodgments in costs adjudications, while simultaneously highlighting a structural tension in the statutory design: tender consequences are applied after a determination that cannot be reopened, even where the determination necessarily included adjudication-related costs that (in hindsight) should not have been incurred.