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Cite as: [2006] IEHC 248
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Neutral Citation No: [2006] IEHC 248
THE HIGH COURT DUBLIN
JUDICIAL REVIEW
Record No. 2001/828JR
PAUL LANDERS
APPLICANT
-and-
JUDGE PATWELL & THE DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENTS
APPROVED JUDGMENT OF MR. JUSTICE T.C. SMYTH DELIVERED THE 20TH JUNE 2006 MR. JUSTICE SMYTH:
In these proceedings the Director of Public Prosecutions ('the Director') seeks to review, pursuant to Order 99, Rule 38(3) of the Rules of the Superior Courts, the taxation of costs in these proceedings by Taxing Master James Flynn, insofar as the same relates to the Applicant's Solicitor's general instruction fee. The Applicant in these proceedings was a member of An Garda Siochαna attached to the Special Detective Unit. He was charged with an offence contrary to Section 106 of the Road Traffic Act, 1961 (which relates to a party's obligations on the occurrence of a road traffic accident) and appeared in the District Court before the First Respondent. The Applicant considered the course of the trial to be unsatisfactory and was concerned that the First Respondent did not approach the matter with an open mind and in an impartial fashion. He sought leave to apply by way of judicial review for an order of prohibition restraining the First Respondent from further conducting the trial.
The judicial review was opposed by the Respondents and the case proceeded to a plenary hearing (on the basis of conflicting facts in the affidavits and the unwillingness of a solicitor to swear and supply affidavit evidence). The Applicant after a two day hearing was successful. The Applicant was awarded his costs, to include all reserved costs, such costs to be taxed in default of agreement.
The Applicant's Solicitor claimed a general instructions fee of 75,000. The Taxing Master on 13th February 2004 allowed a fee of 60,000; the Respondents filed an objection on 26th March 2004 and following the filing of submissions by the parties, the matter came on for hearing before the Taxing Master on 24th January 2005. In a written ruling, dated 15th March 2005, the Taxing Master disallowed the objection. The Director (by Notice of Motion dated 11th April 2005) sought to review the taxation in respect of the general instructions fee.The claim of the Director is that the decision is unjust in that the Taxing Master erred in his examination of the nature and extent of the work done by the Solicitor for the Applicant and, in particular, with regard to its complexity and in his assessment of comparative evidence. Particular reliance was placed on a comparable case of similar "complexity" in which a general instructions fee of 38,000 was agreed.
I have had the benefit of reading all the papers in the Judicial Review proceedings (Record No. JR 828/2001), the ex tempore judgment of O Caoimh J., dated 2nd May 2003, who stayed the proceedings in the District Court pending the judicial review application in which he expressed the view: "I believe that the instant case is of a fairly exceptional nature" because "one could only construe what took place" [in the District Court] "as the judge entering into the arena." As no order was sought prohibiting further prosecution, the judicial review proceedings were determined by Kearns J. in Landers v Director of Public Prosecutions [2004] 2 I.R.
363 - he referred to "the conclusion of a lengthy hearing before Judge Patwell," this I understand refers to the events as recorded in the first paragraph of page 373 of the report. The problem that arose in the District Court seems to have centered "during the cross-examination of the applicant, which lasted for approximately 20 minutes." (See affidavit of Inspector Patrick McCarthy sworn on 18th February 2002, paragraph 27).
The passage from the judgment of Kearns J. states:- "In the instance case, it appears that the hearing of the prosecution against the applicant had taken most of the day before the District Court Judge. A large number of civilian and Garda witnesses had been called by the Prosecution and the applicant himself had completed his own evidence and had been cross-examined in respect of same. The interventions by the District Court and the nature of those interventions have already been found by O Caoimh J. to have prevented a trial in accordance with constitutional requirements.
Would it be fair in those exceptional circumstances, or a proper exercise of the court's discretion, to remit the matter for a further trial before the District Court? In my view it would not." While judicial review proceedings are generally based on affidavit evidence, they are from time to time, as occasion demands, heard by way of plenary hearing.
Whether the circumstances of staying a trial are fairly exceptional or exceptional (an issue considered recently by Macken J. in Adams v Reilly [2005] 3 IR 190), they are not normal, nor are they unique. While undoubtedly all that was necessary was one set of judicial review proceedings, the Applicant was not faulted by Kearns J. for failure to do so and the Judge considered that it was reasonable for the Applicant and his legal advisors to take the view based on existing jurisprudence (A.A. v Medical Council [2003] 4 IR 302 Supreme Court decision published 19th December 2003), and the facts of the particular case that a fresh prosecution of the Applicant would not be sought.
In his submissions to this Court, Mr. Denis McDonald SC noted that: "... the bill of costs records, the Applicant had a genuine fear (which was shared by his solicitors) that Judge Patwell was intent not only on convicting the Applicant, but upon imposing a custodial sentence." Having closely read the affidavits of the Applicant in the judicial review proceedings, I am satisfied that when before the District Court he was apprehensive of conviction - nowhere in such affidavits or in either the judgments of O Caoimh J. or Kearns J. is there any record of the fear of a custodial sentence. The only references to imprisonment in the judgment of Kearns J. are at: (i) p. 367 where a passage of the judgment of Walsh J. in The State (Tynan) v Keane [1968] I.R. 348 at p. 355 is cited, regarding a submission of counsel (ii) p. 368 where a passage of the judgment of Hederman J. (delivering the judgment of the Supreme Court) in Sweeney v Judge Brophy [1993] 2 I.R. 202 at pp. 211 and 212 which refers to
"a length of time in detention." The jurisdiction of the High Court to review a taxation of costs is governed by Section 27(3) of the Courts and Courts Officers Act, 1995 which provides as follows:- "The High Court may review a decision of the Taxing Master of the High Court ... made in the exercise of his ... powers under the section to allow or disallow any costs ... provided only that the High Court is satisfied that the Taxing Master has erred as to the amount of allowance or disallowance so that the decision of the Taxing Master ... is unjust."
This subsection has been considered in Smyth v Tunney (No. 3) [1999] 1 ILRM 211 at p. 213 per McCracken J. and in Cronin v Astra Business Systems Ltd. (No. 2) [2004] 3 IR 476 at p. 481 per McGuinness J. in the Supreme Court. There are two elements for decision - (a) a consideration as to whether there has been an error, and (b) whether such error has led to an injustice.
The powers of the Taxing Master under the section are (as expressed in subsection (1) of Section 27) as follows, the Taxing Master: "Shall have power in such taxation to examine the nature and extent of any work done, or services rendered or provided ... by a solicitor ... and may tax, assess and determine the value of such work done or services rendered or provided in connection with the measurement, allowance or disallowance of any costs, charges, fees or expenses included in a bill of costs." The use of the word "shall" in the subsection is to be construed as mandatory. There is therefore an express obligation on the Taxing Master (and, consequently, on the Court on a review) to examine "the nature and extent of work done." Section 27(2) confers power on the Taxing Master on taxation:- "To allow in whole or part any costs, charges, fees or expenses, included in a bill of costs in respect of ... a solicitor ... as the Taxing Master ...
considers in his discretion to be fair and reasonable in the circumstances of the case, and the Taxing Master shall have power in the exercise of that discretion to disallow any such costs, charges, fees or expenses in whole or in part." In the ruling of 15th March 2005 the Taxing Master under the title "The Work" (at p. 2) recites the various steps taken between December 2001 and the determination by O Caoimh J. on 2nd May 2003. The costs in issue are not related to the proceedings before Kearns J., nonetheless his judgment (if not formally reported in the Irish Reports) was published after the commencement of the taxation but before its determination. There are two expressions of opinion in the recitation of the Taxing Master, to wit:- (1) "It was necessary to prepare a full Replying Affidavit." (2) "In view of the importance of the matter and the nature of the proceedings an application was made" [for a plenary hearing].
On the facts recited, that is the extent of an evaluation. However, there then follows the submissions of both the Applicant and the Respondent.
This is followed by a consideration of the law. In dealing generally with the matter of the Instruction Fee, the Taxing Master in the third paragraph (p. 8) of his decision states:-
"I have set out above the details and features of the case and I have set out in great detail the nature, extent scope of the work undertaken in the instant case." (See p.9 of his report).
The details and features of the case earlier referred to, are the recitation of the procedural path of the proceedings and the submissions based on the facts as perceived by the parties. However, the Taxing Master records a view he had earlier formed, and records it thus:- "I also indicated that, in my view, where an individual's liberty is at issue, it adds considerably to the degree of responsibility borne by the solicitor.
In assessing the instructions fee, the object is to seek a figure which reflects the amount of work done and the effort that was required to translate this to what would be considered a fair and reasonable remuneration having regard to the extent of that work. In arriving at a sum sufficient and adequate to produce a fair and reasonable remuneration for the instruction fee for the solicitor in defending and enforcing the rights of the Plaintiff, one must have regard to the actual and real complexity and magnitude of the case and work involved." [Emphasis added] The Taxing Master further stated:-
"The instructions fee in this case can only be assessed in relation to the work that the case necessitated. The responsibility that rested with the solicitors was obvious, as was the actual effort and energy required.
However, I was of opinion that the amount claimed in the bill of costs, that is £75,000 could not be justified on the narrative in the said Bill and having carried out an examination of the work done pursuant to Section 27 of the Courts and Court Officers Act 1995, I reduced this sum to £60,000.
Having perused and examined all the materials, having read the submissions of both parties and having heard the oral submissions on both sides, I am convinced that the amount to allow in this matter in respect of the instructions fee must reflect the nature of the case. (P.8) In cases such as the instant case with the absence of time records, it is difficult to precisely value the work in monetary terms." (P.10) [Emphasis added] There is nothing in "the examination" of the Taxing Master to find that this was complex litigation or that any abnormal amount of solicitor's time was involved.
I accept what the Taxing Master had to say about a too rigid arithmetical approach to the calculation of an instructions fee (at pp. 11-13) in the absence of time records. However, that is not to say that the time element may be ignored. Indeed, at p. 13 of his decision, the Taxing Master, having referred to Order 99 Rule 27(22)(ii), went on to consider the exercise of his discretion as follows:- "In exercising his discretion in relation to any item, the Taxing Master shall have regard to all relevant circumstances and, in particular, to: (b) the time and labour expended by the solicitor." In the absence of particulars in this regard, there was an absence of a relevant matter. There is therefore an inherent frailty in arriving at a decision which is devoid of a relevant circumstance.
In approaching both bases for the challenge to the Taxing Master's decision, I bear in mind the guidance set out by McCracken J. in Smyth v Tunney (No. 3) [1999] 1 ILRM 211 at p.213:- "The principle upon which I must act ... is not simply to decide whether the Taxing Master erred, but also, if I am to alter his decision, I must find that his taxation was unjust. I cannot approach this issue on the basis of trying to assess what costs I would have awarded had I been the Taxing Master." The review I must undertake is to consider the examination of the Taxing Master, not to substitute it for the detailed and analytical submissions of Counsel on the judicial review. The criteria upon which the fee is to be determined were said by Barron J. in Best v Welcome Foundation Limited [1996] 1 ILRM 34 to be ultimately-
(1) Any special expertise of the solicitor.
(2) The amount of work done.
(3) The degree of responsibility borne. Without in any way diminishing the position of the Solicitor in the instant case, judicially reviewing decisions of the lower courts is a reasonably commonplace legal activity. The case is not made anywhere in the papers that the Solicitor was one whose prime or main practice was in conveyancing or probate or a one man practice down the county who would be unfamiliar with judicial review proceedings. True the Solicitor moved promptly and had an appreciation of the importance of the case given the client's sometime occupation as a Garda assigned to specific duties, but such diligence was no more than the Applicant was entitled to. While the Taxing Master noted that "where an individual's liberty is an issue, it adds considerably to the degree of responsibility borne by the solicitor." This as a statement I would not criticise, and the matter is expressly referred to on page 21 of the Bill of Costs, yet it is truly remarkable that this is nowhere referred in the judgment of O Caoimh J., albeit the judgment is ex tempore: a judge the hallmark of whose work was meticulous attention to detail was most unlikely to have omitted or overlooked the point had it been made in court to him. Again, the reference by Kearns J. to the offence charged (Section 106 of the Road Traffic Act 1981) is very measured [2004] 2 I.R., 363 at 374: "The Court is entitled to have regard to the severity or otherwise of the events charged. In this regard, apart from the vehicle itself, there was a relatively small amount of damage caused to property as a result of the incident in which fortunately no person was injured." [Emphasis added] The material damage other than the car, the property of the State, was £523.74 (Cuffe £250 and O'Leary £273.74). Had a third party suffered personal injury I would well understand the Applicant and his solicitor having a genuine fear of the imposition of a custodial sentence. None of this seems to have been the subject of examination. In my judgment, it would be unfair of me to lay down rules - for many exist as to how the Taxing Master should carry out the examination mandated by Section 27(1) of the Act of 1995, or to suggest how the result of that examination should be expressed.
While the Court cannot and should not suspend all common sense or impose upon itself forensic blinkers, there is nonetheless, in my judgment, an obligation on the Taxing Master to contain in his decision in adequacy of reasoned explanation as to how he arrived at the decision to allow 80% of the fee claimed rather than some other percentage. I apply by analogy the decision of the Supreme Court in P & F Sharpe Limited & Anor v Dublin City & County Manager & Anor. [1989] ILRM 565 at p.581 per Finlay C.J.:- "The necessity for the elected members in the case of directions under Section 4 [of the City and County Management (Amendment) Act 1955] concerning the granting or refusing of a planning permission to act in a judicial manner would involve an obligation to ensure that an adequate note was taken, not necessarily verbatim but of sufficient detail to permit a court upon review to be able to ascertain the material on which the decision had been reached." [Emphasis added] The necessity for this degree of particularity in my judgment was most pertinent given the grounds of objection numbers 1 to 6 in particular. While the Court on review can clearly see where 'the battle lines' were drawn as between the Applicant and the Respondents, its duty is to review the determination of the Taxing Master. Even if "the responsibility that rested on the solicitor was obvious" and on any opinion by reference to the judgment to which the order as to costs related - it is not, and there is no detailed reason given or an explanation as to how or what examination lead to the "opinion that the amount claimed in the Bill of Costs, that is 75,000 could not be justified on the narrative in the said Bill." The Taxing Master goes to great trouble to quote from several sources which help or helped him to come to his decision, including Greensloade on Costs (Longmas 1993). Of the nine elements recited as going to inform the function of the Taxing Master in assessing the instructions fee, one-third of the guidelines; to wit "(d) to determine the time actually spent by each such earner in the conduct of the matter.
(e) to decide whether such time was reasonably spent.
(f) to calculate the total cost of that time (excluding attendances or other matters covered elsewhere in the Bill other than the preparation time );" were not capable of detailed rational consideration for the reason the Taxing Master himself gives, i.e. "the absence of time records." The Taxing Master concluded this element of his decision as follows:-
"The Instruction Fee in this case can only be assessed in relation to the work that the case necessitated. The responsibility that rested with the solicitors was obvious as was the actual effort and energy required, and I concluded (sic) to same albeit briefly on the taxation of these costs." In Superquinn Limited v Bray UDC & Others [2001], 1 I.R., 459 at p. 480 Kearns J. stated:- "It seems to me that in the aftermath of the Act of 1995, any ruling of the Taxing Master must, of necessity, set out in some detail an analysis of the work and the reasoning which leads to the determination made in respect of the solicitor's instructions fees and Counsel's fees, particularly having regard to the powers and responsibilities imposed on the Taxing Master by Section 27(1) and (2) and on the Court by Section 27(3), given that the Court may be called upon to review taxation." (A passage quoted with apparent approval by Peart J. in his recent decision in Quinn v South Eastern Health Board [2005] I ERHC 399).
While I am reluctant to emphatically hold that the examination mandated by the Statute has not been at all fulfilled, it is not in my judgment adequate to satisfy me that the Taxing Master has not erred as to the amount of the allowance or disallowance. There is a paucity of analysis in the first instance and there is no reasoning or satisfactory reasoning for the allowance of 60,000. To merely express a view "that where an individual's liberty is in issue, it adds considerably to the degree of responsibility borne out by the solicitor" without more is not a reason capable of analysis on review: no benchmark is fixed to which the addition can be measured or, indeed, a deduction measured.
Turning now to what were referred to as the "comparators". The Taxing Master's decision (p. 14) notes as follows:- "The issue of comparators was canvassed before me to a great extent. O'Keeffe J. in Doyle v Deasy & Co. & Ors. (unreported, High Court, 21st March 2003) states that comparators are a guide and that care should be exercised in the use thereof (at p. 37). I too see comparable cases as 'tools of assistance' to the existing canons of taxation, which are ample enough to employ in assessing the fees herein." In the earlier decision of Barron J. in Best v Welcome Foundation Ltd. [1996] ILRM, 34 at p. 46, he stated:- "In my view comparison is ultimately the correct approach to assess the instructions fee." However, caution must be applied in the case of comparable cases. In the course of his judgment in Superquinn (ante), Kearns J. stated:-
"I do not find the comparator case cited of any great assistance in relation to the instructions fee, because the cases cited to the Taxing Master and in this court addressed very different facts. The instant case comprised fairly unusual facts and was a case which demanded assessment on its own merits, both for that reason and because of the Act of 1995 so requires." However, in the later case of Gallagher (minor) v Stanley (the High Court unreported Kearns J. 23rd March 2001) Kearns J. stated at p. 7 of the typescript of the judgment:- "If, however, the Taxing Master is rejecting comparator cases which have been opened to him as irrelevant, he must at lest provide his reasons for so doing." In his decision, the Taxing Master at pages 25 and 26, prior to addressing the issue of comparable cases recites page 21 of the Bill of Costs and what he had earlier stated: "I am of the view that where an individual's liberty is in issue, it adds considerably to the degree of responsibility borne by the solicitor." It is unnecessary for me to repeat my determination in this regard as an examination as to the nature and extent of the work done. The Taxing Master notes (at page 26) three cases cited by the Applicant as comparables and the case of Robert Garland v Judge Anthony Kennedy & Ors. & DPP referred to by the Respondent. There then follows an extensive citation (pp. 26-30 inclusive) from a ruling, dated 14th December 1998, of the same Taxing Master in Kennedy v Independent Newspapers. In the course of that case, it is opined that: "The taxation is not directly concerned with the substantive cause of action, but rather with the costs incurred and the nature and extent of the work." If the first part of this statement is a true statement of the law, it is difficult to reconcile with the view, repeated by the Taxing Master in the instant case, about the individual's liberty.
Further, in the extensive citation from the ruling in Kenny's case:- "It is a fundamental concept in the taxation of costs when comparing cases and the costs therein, there must be homogeneity between the cases, having, if not all, at least a significant number of factors of the same degree and extent and the least number of dissimilarities. In Commissioners for Irish Lights v Maxwell Weldon & Darley unreported 15th May 1996, Barron J. stated: 'It is not the function of the Court to reconcile what may well be irreconcilable.' and therefore if there is no true comparison, then this must be accepted rather than trying to fit a square peg into a round hole." Again, in the Kenny ruling, the Taxing Master stated:- "Similarities and comparisons are a part of legal cost counting, but they are not the most important factors.
The nature and enormity of the case and the responsibility resting on the solicitor ultimately determine the justification of the fee and it is an integral part of assessing what is the fair and appropriate fee in any given case." [Emphasis added] While I accept the use of comparable cases cannot be determinative in the instant or any case, they are indicators of more or less accuracy dependent upon the extent to which they can be said to be truly comparable. It is axiomatic that a comparable is not identical - differences of substance as opposed to accidents cannot be ignored, but the value of a comparable is enhanced to the extent that it is broadly and substantially similar. I agree with the Taxing Master when he says: "The use of comparators are a guide to a broad assessment, not a method of calculation." However, what follows:- "Fees appearing to be above the general level or patterns of allowable amounts having regard to comparable cases do not mean that they have been overestimated if they are within permissible range or that there are exceptional circumstances." [Emphasis added] does give rise for concern. This is so because the Taxing Master goes on to note: "If there exists a greater number of dissidences than coincidences, the case should not be utilised as a comparator." Nowhere in his decision in this exercise carried out by the Taxing Master, notwithstanding the very detailed and analytical submissions in support of the objections of the Respondents to the allowances on the taxation of the Applicant's costs dated 26th May 2004 paragraphs 19 to 44 (inclusive) and the summary of the comparison of the Garland case at paragraphs 45 and 46.
While I accept as a general proposition that a comparable that was put to the test by a process of taxation is in general to be preferred to one the result of a settlement. However, a comparator or comparable, even settled, if relevant and admissible (as I believe Garland's case was) should have been given consideration, and express reasons given for either its rejection or an expression as to the weight to be given as to its evidential value to be recorded and assessed. To say, as was stated in the Taxing Master's decision:-
"The cases advanced in my view don't assist in the measurement of the instruction fee. The cases which have settled have not been subjected to the vigorous taxation process and should not be utilised for obvious reason in that it is not known the reason for the settlement." To this is added a footnote that: "Cash flow and/or avoidance of stamp duty may result in the party accepting less than the appropriate fee and another party offering more than the norm." Mr. McDonald added the possibility of different overheads being applicable. I must consider what was stated by the Taxing Master to be what was in the mind of the Taxing Master. If so, it is out of line with the decision of O Caoimh J. in Doyle v Deasy & Company who, responding to the criticism of the judgment of Kearns J. in Gallagher's case (ante) which had been expressed by the Taxing Master in Doyle, made the following comments on comparators:- "With regard to the use of comparisons, neither I nor any of the Judges who have assessed the area of comparative evidence in the area of taxation suggest a slavish approach to the adoption of same. As the area is not an exact science and it is probable that few, if any, cases would be exactly the same, comparators must only be a guide to the assessment in question. However, I am satisfied that they are a most valuable guide. It must be borne in mind that where reference is made to solicitors acting on the basis of their experience, they are called upon to make assessments on the basis of comparative cases in their experience. However, as in all areas, care must be exercised and this includes the exercise of advancing appropriate comparative evidence." (Pp. 67-68 of transcript) As submitted by Mr. Brian Kennedy for the Director, significantly from the perspective of the instant case, O Caoimh J. rejected the approach taken by the Taxing Master in that case of rejecting comparisons where they arose from settlements between parties as opposed to taxations stating:- "I am satisfied that such settlements involving as they do experienced cost accountants may well be of assistance in the assessment of another case and cannot be rejected merely because the cases in question were settled between the parties without the necessity to proceed to taxation by the Taxing Master." (Pp. 69 and 70 of transcript).
Likewise in Harold v Jameson (the High Court, Unreported O Caoimh J. 31st July 2001) where he stated that the Taxing Master's assertion that comparisons put forward on the basis of agreement reached between the parties ranked less than decisions of the Taxing Master was wrong in principle commenting: "One must assume that in the absence of any indications to the contrary that settlements of this nature relate to the application by cost accountants of the relevant consideration in those cases." In my judgment the Taxing Master was in error in failing to proceed to deal with the comparators in accordance with the decided cases in the foregoing judgments. There is a serious error which I consider to be unjust to the Respondents in failing to set out a reasoned decision for the rejection of the Garland case in particular where the agreed instruction fee was 38,000. That is a firm undisputed figure.
In the context of paragraph (6) p. 5 of the Ruling and the passage at p. 21 of the Bill of Costs, what is ultimately referred to at p. 31 of the Ruling as merely "the possibility of a custodial sentence" betokens an inconsistency of belief of an "outcome (which) would have had considerable implications." I accept an offence under Section 106 differs from that under Section 53 of the Road Traffic Act, 1961 and having regard to the real perceived outcome by Kearns J., some small adjustment for the theoretical possibility of a custodial sentence could have been brought into account in addition to the figure of 38,000. The suggested "uniqueness" of the relief is not a convincing argument, in Garland's case, there was already a District Court conviction in place and the stay sought was to prevent the Circuit Court Judge from completing the trial. In my judgment Garland's case was a valid applicable comparable case and no logical reason has been set out in the decision for its rejection. None of the comparators or comparables are individually dealt with at all by the Taxing Master and I am unable to accept that the duty imposed by the 1995 Act has been discharged by the statement concerning the possibility of a custodial sentence and the uniqueness of the relief in his expression: "I genuinely considered on the taxation it was not necessary to state this as I had considered it was so obvious that it was unnecessary to state same." The importance of comparators was stressed by Kearns J. in Gallagher v Stanley (ante) and I find his observations and determinations at p. 7 of the transcript of his judgment absolutely in point with the instant case. In my judgment the error as to the examination ( it was not a root and branch examination), and the failure to apply the Garland case have brought about an injustice. In my judgment the figure of 38,000 should be added to for the theoretical responsibility of the possibility of a custodial sentence. A figure of the order of 5 to 20 per cent should be brought in to take account of that.
Accordingly, I estimate a total figure of 45,000 should fairly and properly represent the instructions fee in this case in accordance with the terms of the 1995 Act and the decided cases referable thereto.
END OF JUDGMENT Approved Smyth TC
MR. KENNEDY: If I may clarify one matter at the very end, Judge, when you were setting out the figure, you said £45,000.
MR. JUSTICE SMYTH: Euro, it is 48 plus 7 as representing the additional possible risk that the Taxing Master referred to which was seen in different lights by him in the course of his own decision making and was seen in a different light by Kearns J. and not at all referred to by O Caoimh J. MR. KENNEDY: In the circumstances I would apply for my costs. As was pointed out at the hearing, I bore the onus of proof, it was a heavy onus of proof and I have discharged that onus. The figure has been significantly reduced. In the circumstances I say I am entitled to my costs.
MR. McDONALD: My Lord, I am actually seeking my costs of the hearing on this basis that this is a case where my solicitor put his figure forward. It was reduced on taxation by the Taxing Master to 60,000. At no time did the Defendant make any proposal that X was enough, at no time did the Defendant offer 38,000 or anything above 38,000. No time did the Defendant offer 45,000. Had that amount been offered, it may well have been the case that it would have been acceptable to my solicitor. My solicitor was in an impossible situation. He put his bill forward and no 27 counter-proposal of any kind was made by the Defendant.
At no stage in the taxation process did the Defendant say this was the sum that should be allowed. The only thing that was said was 38,000 was allowed in Garland, it was never said that something more should be allowed in this case, all that was said was that the fee that was allowed was excessive. Your Lordship has in fact allowed more than the only figure that was ever put forward by the Defendant.
MR. JUSTICE SMYTH: Out of an abundance of caution because of what the Taxing Master said. I will see what I have to say but I have made my decision on that.
MR. McDONALD: In addition to that, we have a very difficult situation where we can't be responsible for the Taxing Master's report. The Taxing Master wrote a report, it may well have been that if he had analysed things in more detail, the Court may have come to a different conclusion, may have increased the amount beyond 45,000, but we can't take responsibility for the faults in the Taxing Master's report. It is significant that we don't even know what are the faults in the Taxing Master's report, at least what the Defendant contends are the faults until the case runs before your Lordship. The Notice of Motion, which is at the back of the book, simply puts the matter before the Court. It does not advance any grounds as to why they say the Taxing Master was in error, it does not put us on notice in any way of what the error was. It is not until we see the written submissions on the night before the hearing before your Lordship that we know what the errors contended for are and we have to deal with them there and then. At no stage are we given an opportunity to say to the Defendant, 'look, we accept this report is unsatisfactory for the reasons that you suggest, we are prepared to go back to the Taxing Master and ask him to review things in light of that.' We are denied that sort of opportunity. I do say that in the circumstances my solicitor was in an absolutely impossible situation and I do say that since the Court has allowed more than the only figure that could be said to have been put forward by the Defendant, i.e. 38,000, this is an appropriate case in which I should be allowed my costs.
MR. JUSTICE SMYTH: Do you want to say anything in reply, Mr. Kennedy?
MR. KENNEDY: Yes, just a few points. Obviously Mr. McDonald has come to this Court and he has stood over the decision of the Taxing Master in the sense that he has defended that decision and he has defended the figure that was awarded to his client and he has been unsuccessful in that defence. Your Lordship will recall that Kearns J. in the Superquinn judgment made reference to the idea that effectively not only did I have to show an error, I had to show an injustice and I had to dislodge the initial figure by a significant sum, and I have done that, Judge. I say that having dislodged the initial figure by a significant sum, it matters not for the purpose of this award ...(INTERJECTION).
MR. JUSTICE SMYTH: What do you say that not even the 38,000 was offered so at least they may have gone off and thought about it? MR. KENNEDY: They were certainly aware that that was the comparable which was being suggested. MR. JUSTICE SMYTH: That is not disputed. The point Mr. McDonald fairly makes is he accepts that, but he makes the point that there was no offer.
MR. KENNEDY: There was no offer but it was made very clear that we were not satisfied ...(INTERJECTION).
MR. JUSTICE SMYTH: That was the figure you were going to hold to if you could and he was in looking for 75,000 and he was nearer the 75,000 with 60,000 than the 38,000. At no stage was an offer made.
MR. KENNEDY: No, I don't understand that an offer was made. The dissatisfaction with the initial ruling was expressed and Mr. McDonald suggests he was not aware of the grounds of dissatisfaction, but they were set out in very considerable detail.
MR. JUSTICE SMYTH: I think you are right in that. The offer point is the weak point from your point of view.
MR. KENNEDY: I think, Judge, if I could put it in these terms. Essentially the number has gone from 38,000 to 45,000, if the number had gone from 60,000 to 53,000, the equivalent reduction, I think you wouldn't have dislodged the Taxing Master's decision in that circumstance.
MR. JUSTICE SMYTH: No, I didn't refer to it, but the other factors mentioned in the submissions of both parties I took into account.
MR. KENNEDY: Yes. What I say, Judge, is effectively I have to effect a significant reduction here and in circumstances where I have managed to effect that significant reduction, the fact that the figure ultimately awarded is slightly higher than the comparable that I suggested which it was clear, I would submit, was a figure that I considered to be the appropriate one, I say the fact that that figure was not formally offered and the fact it was increased to a marginal extent I say are relevant. Effectively the important thing, Judge, is that I have discharged that heavy double onus of proof that lies upon me and I should be entitled to my costs.
MR. JUSTICE SMYTH: Thank you. The position normally is that costs follow the event. Undoubtedly, in this case I have come to the view that the Director was substantially correct in the case he made and displaced the case made on behalf of the costs, as Mr. McDonald correctly referred to it in opening the case. On the other hand, we do have a situation here where, while the figure of 38,000 was undoubtedly the figure at which the Director was prepared to hold to, at no stage was this offered to the Applicant's solicitor either to accept or to negotiate from. It might have been implied that that was a possibility, but nothing appears to have been done by way of offer that might safeguard the point that Mr. McDonald has made. I accept what Mr. Kennedy says, that ample reasons were set out, in fact in most extraordinary level of detail in the objections. While the figure has been displaced and Mr. Kennedy has been substantially correct in the decision to which he has come, in the particular circumstances of this case there is this feature of the absence of an offer being made and it seems to me the appropriate case here should be a back to back for costs and that is what I am going to order. No costs in this case in this Court.
MR. KENNEDY: I am very much obliged to your Lordship. MR. JUSTICE SMYTH: I will try and get this to you as soon as I can, hopefully within four or five days. I am very obliged for the care both of you took in the preparation of the case and also for the brevity of the submissions which is most welcomed.
END OF HEARING