Thiebault Enterprise Ltd & Anor v County Registrar for Galway (Approved)

Factual and Procedural Background

In 2008, the Applicants initiated proceedings seeking possession of certain premises from the Notice Party, along with damages for mesne rates. The Circuit Court granted possession but refused damages and awarded costs in favour of the Notice Party. Subsequently, in 2009, the Circuit Court ordered the Applicants to pay costs to the Notice Party, and separately, the High Court ordered the Notice Party to pay costs to the Applicants in related proceedings. Both parties did not pursue taxation of their respective costs orders for over 14 years, based on a mutual understanding that their entitlements to costs would be set off against each other.

In August 2022, the Applicants became aware that the Notice Party sought to cancel a judgment mortgage registered against their property, prompting the Applicants to issue proceedings seeking well-charging relief in January 2023. A dispute arose regarding the scope of the set-off understanding, with the Notice Party asserting it covered both costs and the judgment sum, while the Applicants contended it only covered costs.

In July 2023, the Notice Party's solicitors notified the Applicants of their intention to proceed with taxation of costs under the Circuit Court order. The Applicants sought judicial review in May 2024 to prohibit the taxation process, alleging inordinate and inexcusable delay and consequent prejudice. The judicial review hearing was held in January 2025 before Mr. Justice Heslin.

Legal Issues Presented

1. Whether the delay by the Notice Party in activating the taxation process was inordinate and inexcusable.
2. Whether, in the context of such delay, it would be unfair and unjust to require the Applicants to submit to taxation.
3. The applicability of the Primor Plc v Stokes Kennedy Crowley three-part test and the O'Domhnaill v Merrick principles to the taxation process.
4. The significance of the distinction between pre-commencement and post-commencement delay in the taxation context.
5. Whether the Applicants have suitable alternative remedies and the impact on the discretionary remedy of judicial review.

Arguments of the Parties

Applicants' Arguments

• The delay of approximately 14 years before activating the taxation process is both inordinate and inexcusable.
• This delay has caused procedural unfairness and prejudice, particularly due to concerns about the completeness of solicitors' files and the ability to instruct on the nature and extent of the work done.
• The Applicants rely on the principles established in Harte v Horan and Power v Kavanagh to argue for prohibition of the taxation process.
• They assert that the shared understanding to set-off costs was a reason for inaction but contend that the delay nonetheless prejudices their ability to contest the taxation fairly.

Notice Party's Arguments

• The Applicants and the Notice Party had a mutual understanding not to pursue costs, effectively resulting in a stand-off rather than delay.
• The delay prior to commencement of taxation cannot be equated with inordinate delay under the Primor test, which focuses on post-commencement delay.
• There is no evidence of prejudice to the Applicants that would justify prohibiting the taxation process.
• The taxation process was activated promptly once the misunderstanding about the set-off arose.
• The County Registrar’s statutory powers and the availability of appeal provide adequate procedural safeguards.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Primor Plc v Stokes Kennedy Crowley [1996] 2 IR 459	Sets out a three-part test for dismissing proceedings on grounds of delay: (1) inordinate delay, (2) inexcusable delay, and (3) balance of justice.	The court applied the Primor test to assess whether the delay in activating taxation was inordinate and inexcusable, focusing on the distinction between pre- and post-commencement delay.
O'Domhnaill v Merrick [1984] IR 151	Inherent jurisdiction of the court to dismiss proceedings where delay causes patent injustice or unfair burden on a defendant.	The court considered whether allowing the taxation to proceed would cause a clear and patent unfairness to the Applicants, concluding it would not.
Power v Kavanagh [2019] IEHC 495	Judicial review as a remedy to prohibit taxation processes where delay causes procedural unfairness.	The court acknowledged Power as authority for judicial review in taxation delay cases but distinguished the facts, noting the present case involved first-time activation of taxation with no post-commencement delay.
Harte v Horan [2013] 2 IR 291	Delay in taxation process post-commencement can justify striking out taxation on grounds of unfairness and prejudice.	The court distinguished Harte on its facts, noting the present case did not involve re-activation of taxation after delay but delay prior to commencement.
Cave Projects Limited v Kelly & Ors. [2022] IECA 245	Clarifies principles on delay and prejudice, emphasizing the need for evidence of prejudice and the proportionality of dismissal.	The court relied on Cave Projects to assess the balance of justice and the need for evidential basis for prejudice, finding the Applicants failed to establish prejudice.
McGivern v Fitzpatrick & Ors. [2024] IEHC 365	Summarizes principles on delay and balance of justice in dismissal applications.	Used to frame the court’s analysis of delay and prejudice in the context of the present judicial review application.

Court's Reasoning and Analysis

The Court began by outlining the distinct nature of taxation proceedings compared to ordinary legal proceedings, emphasizing that the taxation process was only activated in 2023, with no delay occurring after that point. The Court identified a critical distinction between pre-commencement delay (the 14-year period before taxation was activated) and post-commencement delay, noting that the Primor test primarily concerns the latter.

Applying the Primor test, the Court found that the Applicants failed to establish that the Notice Party’s delay was inordinate or inexcusable because the parties had a shared understanding not to pursue costs, effectively amounting to a stand-off rather than neglect. The Court rejected the Applicants’ argument that the delay constituted inordinate delay, as both sides acquiesced in the mutual non-pursuit of costs for over a decade.

Regarding prejudice, the Court examined the Applicants’ assertions about incomplete files and difficulties in instructing on the nature and extent of work done. It found these claims speculative and inadequately supported by evidence. The Court highlighted that both parties’ solicitors retained files, that pleadings were available, and that the County Registrar’s statutory role includes determining a reasonable sum based on properly vouched documentation.

The Court observed that no evidence from the Applicants’ legal costs accountants indicated any difficulty in assessing the reasonableness of the Notice Party’s bill of costs. It also noted the procedural safeguards inherent in the taxation process, including the right to tender, the expertise of the County Registrar, and the right of appeal.

The Court distinguished this case from Harte v Horan, where delay occurred after taxation commenced and the defendant was lulled into inaction. Here, no such post-commencement delay or lull occurred. The Court also raised but did not decide issues about alternative remedies and the appropriateness of judicial review at this stage, noting the absence of legal argument on these points.

Ultimately, the Court concluded that the Applicants had not demonstrated any entitlement to relief under either the Primor or O'Domhnaill principles, and that permitting the taxation to proceed was just and proportionate.

Holding and Implications

The Court DISMISSED the Applicants’ application for judicial review and refused to prohibit the taxation process from proceeding.

The decision means that the taxation of costs ordered by the Circuit Court may continue in the normal course, subject to the procedural protections afforded by the Circuit Court Rules, including the County Registrar’s role and the right of appeal. No new legal precedent was established; rather, the Court applied existing principles to the unique factual matrix of this case, emphasizing the importance of evidence in establishing delay and prejudice and recognizing the distinction between pre- and post-commencement delay in taxation proceedings.

The Notice Party was entitled to be reimbursed for any outlay, but no order as to costs was made due to the Notice Party’s self-representation. The parties were directed to submit an agreed draft order or attend for mention.