Da Silva & ors v Rosas Construtores S.A. & ors

Factual and Procedural Background

The Plaintiffs initiated legal proceedings against the Defendants concerning three related cases. Judgment was delivered by Judge Keane on 18 March 2016, with the cases adjourned to 8 April 2016 to allow the parties to consider the judgment. On 8 April 2016, further arguments were heard regarding the form of order and costs. A ruling on costs was reserved and subsequently delivered on 15 April 2016, resulting in a final order directing the Defendants to pay the Plaintiffs' reasonable legal costs, to be taxed and ascertained in default of agreement, with no stay on payment pending appeal. Neither party sought nor was granted liberty to apply for any variation of this final order.

The Defendants appealed aspects of the judgment to the Court of Appeal, with a hearing date fixed. On 24 April 2017, the Plaintiffs issued a motion pursuant to Order 99, rule 5(1) of the Rules of the Superior Courts (RSC), seeking payment on account of costs before taxation was complete. The Taxing Master had commenced taxation of costs but the process was adjourned pending the outcome of a Supreme Court appeal in a related case, Sheehan v Corr. The Plaintiffs’ solicitor provided an undertaking as required by a new Practice Direction (HC71) aimed at addressing delays in taxation of costs.

Legal Issues Presented

1. Whether the Court retains jurisdiction to make an order for payment on account of costs under Order 99, rule 5 of the Rules of the Superior Courts after a final costs order has been made without liberty to apply;
2. Whether the Plaintiffs’ application for payment on account of costs constitutes an impermissible attempt to vary or revisit a final order, rendering the Court functus officio;
3. The scope and effect of the supervisory jurisdiction of the High Court over taxation of costs and the proper procedure to address delays or adjournments in taxation;
4. The applicability and interpretation of the recent Practice Direction HC71 concerning payment on account of costs pending taxation;
5. The relevance of authority from Supreme Court decisions on the finality of orders and the circumstances in which a court may amend or vary a final judgment or order.

Arguments of the Parties

Plaintiffs' Arguments

• The Plaintiffs relied on Order 99, rule 5 of the RSC and Practice Direction HC71 to seek a reasonable payment on account of costs pending taxation.
• They argued that the Court has jurisdiction to make such an order even after a final order on costs has been made, without the need for liberty to apply, as liberty to apply is inherent in all orders unless expressly excluded.
• The Plaintiffs contended that the supervisory jurisdiction of the High Court over the Taxing Master supports their application, especially given the delays and adjournments in taxation.
• They cited the decision of Cross J in In re Depuy International Limited to support the proposition that Order 99, rule 5 permits such orders at any stage after determination of a case.
• The Plaintiffs submitted that their application does not seek to vary the final order but rather to enforce payment on account of costs as contemplated by the Rules and Practice Direction.

Defendants' Arguments

• The Defendants argued that the Court is functus officio having made a final order on costs on 15 April 2016, with no liberty to apply granted or sought.
• They relied on established Supreme Court authority, including Belville Holdings Ltd v Revenue Commissioners, The Attorney General v Open Door Counselling Ltd (No. 2), and G.McG. v D.W. (No. 2), which affirm that final orders should not be revisited except in limited circumstances such as slip or error.
• The Defendants submitted that the Plaintiffs’ application is effectively a request to vary or amend the final order and is therefore impermissible.
• They emphasized that the supervisory jurisdiction over taxation is exercised through judicial review or review of taxation procedure, not by ancillary applications after a final order.
• The Defendants rejected the Plaintiffs' contention that liberty to apply is inherent in the final order, noting that such liberty must be expressly reserved for final orders to permit subsequent applications.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court began by acknowledging the unusual nature of the Plaintiffs’ application for payment on account of costs after a final order on costs had been made. It noted that Order 99, rule 5 of the RSC permits costs to be dealt with at any stage, including after conclusion of proceedings, and that Practice Direction HC71 allows for payment on account pending taxation where there is no dispute on liability.

However, the Court emphasized that the final order on costs dated 15 April 2016 was conclusive and did not reserve liberty to apply. The Court relied heavily on the principle of finality established by Supreme Court authorities, particularly Belville Holdings Ltd v Revenue Commissioners, which restricts the circumstances in which a final order may be amended or revisited.

The Court rejected the Plaintiffs’ argument that liberty to apply is inherent in all orders, holding that for final orders such liberty must be expressly reserved. Without such reservation, the Court is functus officio and lacks jurisdiction to entertain the application.

The Court also distinguished the supervisory jurisdiction over the Taxing Master, which must be exercised through judicial review proceedings or taxation procedure review, from the novel jurisdiction the Plaintiffs sought to invoke.

While the Court agreed with the reasoning in In re Depuy International Limited concerning the power to order payment on account of costs pending taxation, it found that this did not extend to making such an order after a final order had been made without liberty to apply.

Accordingly, the Court concluded that it had no jurisdiction to grant the relief sought by the Plaintiffs under the circumstances.

Holding and Implications

The application is dismissed.

The Court’s decision affirms the principle of finality in judicial orders, particularly in relation to costs, emphasizing that final orders cannot be varied or revisited absent express liberty to apply or exceptional circumstances. The ruling clarifies that applications for payment on account of costs under Order 99, rule 5 must be made before or as part of a final order or with liberty to apply reserved. The judgment underscores the limited scope of the High Court’s jurisdiction after a final order and reinforces procedural safeguards for the administration of justice. No new precedent was established beyond confirming existing principles regarding functus officio and finality of orders.