Introduction

The judgment in Thiebault Enterprise Ltd & Anor v County Registrar for Galway (Approved) [2025] IEHC 108 represents a significant development in the law regarding the taxation of costs and delay. Set before the High Court of Ireland, the case arose out of a long-running dispute between the applicants – Thiebault Enterprise Limited and John Twomey – and the respondent, the County Registrar for Galway, with Mark Bundschu as a notice party.

The dispute originally centred on orders granted in separate proceedings in 2008 and 2009 in both the Circuit Court and the High Court concerning possession, damages, and costs. A mutual decision to set-off the respective cost orders led to a prolonged period of inaction for over 14 years. The enforcement process was reactivated only in 2023 when the notice party sought to have a judgment mortgage cancelled. At that juncture, the applicants initiated civil proceedings for well-charging relief, triggering a judicial review of the taxation process.

This case raises complex issues regarding delay in cost taxation, the application of the Primor and O’Domhnaill tests, and the critical question of whether delay occurring largely before the formal commencement of the taxation process should be considered “inordinate” or “inexcusable”. The judgment thus marks an important milestone in clarifying the interface between mutual set-off understandings and judicial review in cost taxation.

Summary of the Judgment

The court’s decision, delivered by Mr. Justice Mark Heslin on 21 February 2025, revolved around whether the notice party’s delayed activation of the taxation process could be characterized as inordinate and inexcusable. The applicants contended that the delay prejudiced their ability to participate in a fair taxation process. However, the judgment emphasized:

• The mutual understanding between the parties that neither would actively pursue cost recovery through the taxation process, which spanned some 14 years.
• The factual distinction between pre‐commencement delay (the delay occurring before the taxation process was formally activated) and any alleged post‐commencement delay (which, in this case, did not exist).
• The application of the Primor test – focusing on inordinate delay, its excuse, and the balance of justice – and the supplementary O’Domhnaill principles which further scrutinize whether enforcement would result in a clear injustice.
• The court ultimately held that no inordinate or inexcusable delay attributable to the notice party was proven. Moreover, given the shared decision not to pursue costs, the balance of justice favoured allowing the taxation process to proceed.

In conclusion, the applicants failed to demonstrate any serious prejudice, and it was determined that the existing procedural safeguards (such as the tender process, the evaluation by the County Registrar, and the right of appeal) would ensure a fair taxation process. For that reason, the judicial review application was dismissed.

Analysis

Precedents Cited

The judgment draws significantly on two streams of precedent:

• Primor Plc v Stokes Kennedy Crowley [1996] 2 IR 459: This case establishes a three-part test that requires consideration of whether delay is inordinate; whether such delay is inexcusable; and, if so, whether the balance of justice favours dismissing the claim. In the present case, the court’s analysis using the Primor test was pivotal in focusing on “post‐commencement” delay as opposed to delay prior to activation of the taxation process.
• O’Domhnaill v Merrick [1984] IR 151: Here, the approach is rooted in the court’s inherent jurisdiction to dismiss proceedings if delay makes it unjust to force a defendant to defend a claim. The judgment relies on this authority in assessing whether requiring the applicants to participate in a delayed taxation process would result in patent injustice.

Additional illustrations were drawn upon from subsequent cases such as Harte v Horan [2013] 2 IR 291 and Power v Kavanagh [2019] IEHC 495. Notably, the facts in Harte were distinguished – the delay in that case related to a reactivated taxation process after a long period of inactivity, whereas in the current case the taxation process was only activated once by the notice party. The careful engagement with these precedents shows how historical jurisprudence influenced the court’s direction while spotlighting the novel issue of differentiating pre‐commencement and post‐commencement delays.

Legal Reasoning

The Court’s reasoning centered on several pivotal points:

• Mutual Set‐Off and Inaction: The court examined the long history of inaction over a 14-year period during which both parties believed that their respective cost claims were offset through mutual agreement. This mutual set‐off was key to understanding the context of the delay.
• Distinction between Pre‐Commencement and Post‐Commencement Delay: A central element of the reasoning was whether delay in the cost enforcement process should be assessed once the process was activated, or if delay accrued prior to that event could be taken into account. The court concluded that only post‐commencement delay is relevant under the Primor test. Since no delay occurred after activation, the applicants’ claim on grounds of inordinate delay was not satisfied.
• Procedural Fairness and Alternative Remedies: In analyzing the role of the County Registrar and the safeguards inherent in the taxation process (e.g. the tender process, scrutiny by legal cost accountants, and the appeal routes), the court reaffirmed that even if a delay had been alleged, the existence of these measures ensured that the applicants’ rights were preserved. This reasoning highlighted the non-punitive and supervisory nature of the taxation process.

Thus, the court determined that the applicants had not established any actionable delay that might render the taxation process unfair or unjust.

Impact on Future Cases and the Area of Law

This judgment is poised to have significant implications for future cases involving the taxation of costs:

• It sets a clear precedent in distinguishing between delay that occurs before the formal commencement of a taxation process (pre‐commencement) and delay after such commencement (post‐commencement). This differentiation might limit the application of the Primor test to only those periods where the process has actively begun.
• The ruling reinforces the significance of mutual set‐off arrangements in cost disputes, clarifying that agreed inaction over a long period cannot by itself be reinterpreted as “inordinate delay” deserving of judicial intervention.
• The case will likely influence how legal practitioners advise clients on document preservation and strategic decisions regarding enforcement of costs orders, particularly where alternative remedies exist within the structured framework of the Civil Court Rules.

Complex Concepts Simplified

To aid in understanding, several complex legal principles from the judgment can be outlined in simpler terms:

• Mutual Set‐Off: This is an arrangement where both parties agree not to pursue their cost claims because each owes the other. In this case, despite a lengthy delay, both sides were operating under the understanding that nothing further would be enforced.
• Pre‐Commencement vs. Post‐Commencement Delay: Pre‐commencement delay refers to any period of inaction before the official start of the cost taxation process. The court ruled that only the delay after the process starts (post‐commencement) is relevant when considering fairness. Since the notice party acted promptly once the process was activated, the delay before that did not count as “inordinate delay.”
• Judicial Review in Cost Taxation: Judicial review allows a court to examine whether the process used to determine costs is fair and lawful. The ruling clarifies how and when judicial review can be sought, emphasizing that robust internal safeguards (such as appeal rights and the regulation of the County Registrar’s role) generally protect parties from unfair practices.

Conclusion

The High Court’s decision in Thiebault Enterprise Ltd & Anor v County Registrar for Galway marks a pivotal moment in the management and judicial review of taxation of costs. By drawing a crucial distinction between delays that occur before versus after the commencement of the taxation process, the judgment clarifies that mutual understandings—such as the set‐off agreement in this case—play a key role in defining what constitutes acceptable delay.

In applying well-established precedents such as Primor and O’Domhnaill alongside comparisons to decisions in Harte and Power, the Court underscored that alternative remedies exist within the current procedural framework, thus ensuring fairness within the system. As a result, the applicants’ claim, based largely on pre‐commencement delay and alleged prejudice, was dismissed.

This judgment offers a robust roadmap for future disputes in cost taxation, particularly in instances where parties rely on informal arrangements like mutual set‐off. Legal practitioners will find in this decision both guidance on procedural strategy and an affirmation of the fairness safeguards embedded within the Civil Court Rules.