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Nowak v Intesa Sanpaolo Vita S.P.A (Approved)
Summary of High Court Judgment
Factual and Procedural Background
The Plaintiff commenced two High Court proceedings in February 2016 and September 2017 claiming wrongful dismissal arising from a purported termination of employment in August/September 2015. The two proceedings were consolidated by perfected orders in July 2024. The Defendant filed motions to dismiss for delay on 12 July 2023. The Plaintiff delivered a statement of claim in September 2023 and motions for judgment in default of defence in December 2023. The motions were heard on 18 April 2024 and a reserved judgment was delivered on 9 May 2024 (the principal judgment), which declined to dismiss the proceedings despite finding inordinate and inexcusable delay and proposed specific case management directions and a proposed form of order. Parties were invited to make written submissions on the proposed form of order by 10 June 2024; neither party did so. Four orders were subsequently perfected in July 2024. The Plaintiff pursued measurement (adjudication) of outlay and out-of-pocket expenses under Part 10 of the Legal Services Regulation Act 2015. A query arose in the adjudication about the form and scope of the perfected orders. Amendments were made to the perfected orders on 28 May 2025 under Order 28, rule 11 to address costs wording. The Plaintiff later sought further amendment (including deletion of references to the motions for judgment in default and substituting court measurement of costs) and to re-enter the default-judgment motions; the court heard the application on 15 April 2026 and reserved judgment, which was delivered on 13 May 2026 by Judge Simons.
Legal Issues Presented
- Whether the High Court had jurisdiction to amend or rewrite perfected orders (pursuant to Order 28, rule 11 or by inherent jurisdiction) where an automatic right of appeal to the Court of Appeal exists.
- Whether the Plaintiff should be permitted to delete references to the motions for judgment in default, re-enter those motions and have them heard, despite a defence having been delivered, and whether the court should measure the Plaintiff's outlay and other out-of-pocket expenses instead of those costs being adjudicated under Part 10 of the Legal Services Regulation Act 2015.
Arguments of the Parties
Plaintiff's Arguments
- The court had failed to make formal orders in relation to the Defendant's motions to dismiss for delay, thereby prejudicing the Plaintiff's ability to recover expenses in adjudication.
- The Plaintiff (a litigant in person) sought either to re-enter and have heard the two motions for judgment in default of defence or to have the court measure her outlay and out-of-pocket expenses rather than leave measurement to the Legal Costs Adjudicator.
The opinion does not contain a detailed account of the Defendant's legal arguments beyond the procedural steps described and the Defendant having delivered a defence on 10 June 2024.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Company A v. Company B [1996] 2 IR 459 | Then-leading authority on the principles governing delay in prosecuting proceedings. | The principal judgment was made by reference to this authority in assessing the delay issue. |
| Appellant v. Appellee [2025] IESC 21 | Restatement of the principles governing delay and the High Court's inherent case-management powers. | Noted that the principal judgment predated this restatement; later cited (para. 118) for the High Court's inherent jurisdiction to case-manage to avoid striking out. |
| Plaintiff v. Company A [2024] IEHC 263 | The principal High Court judgment in these proceedings determining the motions to dismiss for delay and proposing form of orders and case management directions. | Served as the basis for the proposed form of perfected orders that the Plaintiff now sought to amend. |
| Dawson v. Company A [2002] IESC 36, [2002] 2 I.L.R.M. 210 | Guidance on costs recoverable by litigants in person (limited to allowable outlay and out-of-pocket expenses). | Applied in the principal judgment's formulation of costs recoverable by the Plaintiff as a litigant in person and cited when addressing the measurement of such costs. |
| In the matter of Company A (No. 3) [2000] 2 IR 514 | Authorities on appellate/exceptions to finality and revisiting perfected orders. | Referenced as general law on exceptional appellate jurisdiction to revisit perfected orders. |
| Company A v. The State [2021] IESC 35 | Summarised principles governing exceptional reopening of finally determined proceedings; emphasis on finality and narrow exceptional circumstances. | Quoted to explain the high threshold for reopening final decisions and when limited jurisdiction to reopen may be exercised. |
| Plaintiff v. The State [2023] IEHC 386 | General observation that an aggrieved party ordinarily has an effective remedy by way of appeal. | Used to note that the existence of an appeal route ordinarily limits first-instance reopening jurisdiction. |
| Appellant v. The State [2017] IESC 51 | Explanation that judges make errors but limitations on reopening judgments are structured to protect finality; rationale for restricting remedies to appeals. | Cited to underscore the rationale for limiting the High Court's power to reopen perfected orders. |
| Plaintiff v. Company A [2026] IECA 81 | Sets out the "interests of justice" enquiry under Order 27 in respect of judgment in default of defence and factors to be considered. | Applied to conclude that any attempt now to obtain default judgment would fail because the interests of justice favour allowing the Defendant to defend. |
| Appellant v. The State [2024] IECA 201 | Authority that recoverable costs for litigants in person exclude remuneration for the litigant's own time/expertise. | Used to explain the scope of recoverable outlay and out-of-pocket expenses for litigants in person. |
Court's Reasoning and Analysis
1. Jurisdictional framework: The court identified limited exceptions permitting amendment of perfected orders: (a) correction of clerical mistakes or accidental slips under Order 28, rule 11; (b) amendment to make the drawn order reflect what the court actually decided/intended; and (c) a narrowly framed exceptional jurisdiction to reopen where finality would otherwise produce a fundamental denial of justice. The court stressed the importance of finality and the ordinary availability of appeal as the appropriate remedy.
2. Application to the proposed amendments re: default-judgment motions: The proposed deletions and re-entry sought to rewrite the perfected orders, not to correct a clerical slip or to make the record accord with the court's intention. The principal judgment had expressly invited written submissions on the proposed form of orders by 10 June 2024; the Plaintiff did not avail of that invitation. The Plaintiff thereafter relied on the orders (by pursuing adjudication of costs) and accepted an earlier amendment to insert costs wording. The court found the Plaintiff had acquiesced, had delayed unreasonably, and had not moved promptly — all factors precluding use of inherent jurisdiction. The court also concluded that re-entering the default-judgment motions would be futile because a defence had been delivered on 10 June 2024 and any judge would, in the interests of justice, extend time or allow the Defendant to defend.
3. Application to the proposed amendments re: costs measurement: The principal judgment had ordered that, in default of agreement, recoverable outlay and out-of-pocket expenses be measured under Part 10 of the Legal Services Regulation Act 2015. The court observed that this is a standard form of order and that the Act does not indicate an intention to oust the court's long-established power to allow litigants in person to recover allowable outlay. Nonetheless, the Plaintiff had participated in adjudication and it was too late to switch to a court measurement; if jurisdictional issues arise for the Adjudicator, the proper route is a reference to the High Court under section 159. The court could have measured costs in gross under Order 99 if timely requested in June 2024, but the Plaintiff did not do so.
4. Conclusion of analysis: The proposed amendments sought to undermine the intent of the principal judgment, were outside the scope of Order 28, rule 11, and failed the conditions for any exceptional inherent jurisdiction to reopen perfected orders (no fundamental denial of justice shown, Plaintiff had acquiesced, and Plaintiff did not move promptly).
Holding and Implications
APPLICATION TO AMEND PERFECTED ORDERS REFUSED.
Implications:
- The perfected orders (as amended on 28 May 2025) remain in force; the Plaintiff's request to delete references to the motions for judgment in default and to re-enter those motions is refused.
- The Plaintiff's request that the court, rather than the Legal Costs Adjudicator, measure her outlay and out-of-pocket expenses is refused as untimely; the proper procedural routes for any jurisdictional concern by the Adjudicator are available (section 159 reference).
- As to costs of the applications to amend and to re-enter, no order was made; each side will bear its own costs.
- The decision does not purport to establish a new legal principle; it applies established principles concerning finality, the limited scope of Order 28, rule 11 and the conditions for reopening perfected orders.
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