BC [A Minor] v Health Service Executive (Approved)

Factual and Procedural Background

The Plaintiff brought a medical negligence action (commenced 2019) alleging catastrophic birth injuries. That action was conditionally settled without admission of liability on terms providing for 50% of damages with an on-account payment of €4,000,000 and was the subject of a ruling by the High Court on 23 June 2022. A claim for costs followed. The Plaintiff's bill of costs totalled €1,688,436.59. The Legal Costs Adjudicator (LCA) gave a determination on 2 October 2023. Both parties applied for a Consideration under s.160. The Chief Legal Costs Adjudicator (CLCA) delivered a Consideration on 5 November 2024 and upheld the earlier allowances. The Defendant filed a Notice of Review in the High Court on 26 November 2024 pursuant to s.161 of the Legal Services Act 2015 and Order 99, r.38 RSC 1986 seeking review of the CLCA/LCA determinations in relation to: (i) the Solicitors' Instruction Fee (items A.1.12, B.1.112, C.1.11, D.1.7); (ii) Senior Counsel brief fee (Item C.2.4); and (iii) Junior Counsel brief fee (Item C.2.7). The Defendant relied on an affidavit of Attorney Finnerty sworn 25 November 2024 and exhibits. The matter was heard by Judge Bradley who delivered judgment 1 May 2026.

Legal Issues Presented

1. Whether the CLCA/LCA erred as to the amount of allowance or disallowance so that the determination is "unjust" within the meaning of s.161(5) of the Legal Services Act 2015.
2. Whether the CLCA/LCA gave adequate reasons for the allowances (particularly how statutory factors in Schedule 1 of the 2015 Act were translated into the specific figures allowed).
3. Whether the CLCA/LCA properly applied the Schedule 1 factors (including complexity and novelty) and appropriately treated comparator evidence and CPI adjustments as a residual "sense‑check".
4. Whether a second Senior Counsel was reasonably necessary and whether the brief fees allowed for senior and junior counsel were excessive on a party-and-party basis.

Arguments of the Parties

Defendant's Arguments

• The allowances for the Solicitors' Instruction Fee (€520,000 allowed by LCA) and counsel's brief fees (Senior €95,000; Junior €65,000) were excessive and unreasonable on a party-and-party basis and produced an injustice under s.161.
• The CLCA/LCA overstated the novelty and complexity of the underlying proceedings and thereby inflated the numerical allowances.
• The CLCA/LCA failed to explain how he arrived at the specific monetary figures assigned to the allowances (a "gap" between statutory methodology and the valuation assigned).
• Comparators supplied by the Defendant showed lower appropriate ranges (Defendant proposed an Instructions Fee of €375,000 and brief fees Senior €75,000; Junior €50,000) and the CLCA/LCA failed adequately to engage with that comparator material or with CPI application noticeably introduced without prior notice.
• The briefing of a second Senior Counsel was not necessary; the Defendant pointed to periods of inactivity in the pre‑commencement phase and argued the itemisation did not justify the extreme allowances made.

Plaintiff's Arguments

• There was no dispute that the work claimed was actually done or necessary; the parties agreed on the factual work and the statutory factors to be considered.
• The CLCA/LCA reviewed the solicitor's files and all expert reports and applied ss.155, 157 and Schedule 1 of the 2015 Act in reaching a reasoned allowance.
• Comparator evidence is a residual "sense‑check" only; the CLCA/LCA was entitled to treat comparators as such and to place the allowance at the upper end of the range in light of the case's complexity and novelty.
• The CLCA/LCA properly concluded that a second Senior Counsel was not necessary and disallowed its fee; other allowances were justified by detailed file review and the novel/complex issues (including disputed causation and numerous expert reports).

Table of Precedents Cited

Court's Reasoning and Analysis

The court proceeded by reference to the statutory scheme (ss.155–161, Schedule 1 and s.157 of the Legal Services Act 2015) and established authorities on review of taxation/adjudication decisions. The analytical steps were:

1. Identify the applicable statutory methodology: LCAs must verify work was done, consider whether charging was appropriate, determine a fair and reasonable charge and whether costs were reasonably incurred (s.155(4)–(5); Schedule 1 principles).
2. Define the review threshold under s.161: the High Court may allow a review only if the LCA erred as to the amount so that the determination is "unjust" (error + injustice cumulatively required).
3. Examine the LCA's original Determination (2 Oct 2023) and the CLCA's Consideration (5 Nov 2024): both documents recorded a full review of the solicitor's file, identified the Schedule 1 factors, addressed disputed items and explained why each contested allowance was deemed fair and reasonable.
4. Assess the adequacy of reasons: applying Connelly and C.D., the court accepted that reasons need not be lengthy so long as they enable parties and the court to identify how statutory factors were applied; the CLCA/LCA set out the basis for his conclusions and conducted a file‑based "root and branch" review of contentious matters.
5. Evaluate comparator evidence: the CLCA/LCA treated comparators and CPI as a residual "sense‑check" after applying statutory criteria. The court found this methodology consistent with Sheehan (comparators valuable if properly used) and accepted the CLCA/LCA's view that comparator tables have inherent limitations and cannot substitute for full file review.
6. Apply the Bloomer/HM framework for intervention: even if an error were identified, the court must determine whether the resulting figures fell outside a range reasonably open to the CLCA/LCA such that the determination was unjust. The court found no error of fact, law or principle that rendered the allowances unjust; the CLCA/LCA's allowances fell within a reasonable range given the case's complexity, expert evidence and voluminous documentation.

Holding and Implications

DISPOSED OF: The court refused the Defendant's application for review pursuant to s.161 of the Legal Services Act 2015 and Order 99 of the Rules of the Superior Courts 1986.

Implications: The CLCA/LCA determinations dated 2 October 2023 and 5 November 2024 stand; the contested allowances (Solicitors' Instruction Fee and counsel brief fees as determined by the CLCA/LCA) remain in effect. The court held that the Defendant did not establish an error of fact, law or principle producing an unjust result. The judgment did not purport to create new precedent beyond application of established principles; it confirms that comparators operate as a residual sense‑check and that adequacy of reasons is judged by the ascertainability standard described in the authorities.

Appearances

Attorney Ó Braonáin SC and Attorney Hand BL appeared for the Defendant, instructed by Attorney Finnerty (solicitor). Attorney Keating SC and Attorney Lyons BL appeared for the Plaintiff, instructed by Attorney Toher (solicitor).

Order

The proposed order (adopted by the court) refused the Defendant's application for review and listed the matter for mention to address costs.