High Court of Ireland Decisions

1. The background to these proceedings is most unusual, and I think needs to be set out in some detail. While the facts are not in dispute, they are somewhat complicated.

2. The Applicant is a Solicitor who acted for the Plaintiff in a personal injuries action between Cyril Deans Plaintiff and Thomas Sheridan Defendant. Mr. Deans had been treated for some of his injuries by Mr. Paul McNamee, an orthopaedic surgeon.

3. Mr. McNamee was ultimately a witness in the action, in which Mr. Deans was successful and was awarded damages and costs. When the costs were taxed, included in the costs was the sum of £751 in respect of Mr. McNamee's fees for medical reports and for attending in court.

4. The Applicant was in due course paid the costs by the Defendant's Solicitor in those proceedings, but due to an oversight he omitted to pay Mr. McNamee's fees.

5. Mr. McNamee engaged Lennon Heather & Co., the Notice Party herein, as his solicitors to assist in collecting the fees due to him, and they in due course made a complaint to the Law Society against the Applicant. A few days before the Law Society's Registrars Committee met to consider the complaint, the Applicant paid the said sum of £751 to Lennon Heather & Co. At the meeting of the Registrars Committee it was suggested that the Applicant should also discharge the balance of Mr. McNamee's fees, which had not been allowed on taxation, and this he duly did. At a subsequent meeting of the Registrars Committee they were informed that all monies due to Mr. McNamee had been paid by the Applicant, and they directed that the Applicant should discharge the reasonable legal costs of Lennon Heather & Co. in recovering the amount due to Mr. McNamee. There was considerable further correspondence between the Applicant, the Law Society and Lennon Heather & Co. which is not relevant to the matters I have to determine, but ultimately a Requisition to Tax the costs was submitted to the Taxing Master, the Respondent herein. This was not a Requisition to Tax as between the Applicant and Lennon Heather & Co., but a Requisition to Tax as between Mr. McNamee and Lennon Heather & Co., based on a solicitor and own client bill. I think this was probably the only way in which the matter could have got before the Taxing Master, as the Law Society would not appear to have had any right to order taxation of the costs they had required the Applicant to pay. It is a reasonable inference that, if the Taxing Master certified the amount of the costs as between solicitor and client, these would be the reasonable costs of Lennon Heather & Co., which the Applicant was required to pay. In any event, and presumably to ensure that the Applicant would have some say in the conduct of the taxation, the Requisition to Tax was signed by Mr. McNamee who, in the body of the Requisition, appointed the Applicant as solicitor to attend on his behalf at the taxation. This again was a very reasonable thing to do, as the Applicant was in fact going to have to end up paying the costs.

6. The taxation duly took place on 17th July, 1996 at which Mr. Peter Lennon, a partner in Lennon Heather & Co., appeared on behalf of his firm, and the Applicant appeared on behalf of Mr. McNamee. After hearing submissions, the Respondent found that the sum of £714.33 was due to Lennon Heather & Co. When the Respondent announced his decision the Applicant asked the Respondent whether he was holding against the Applicant's submission that the District Court (Costs) Rules, 1990 should apply, and that Lennon Heather & Co. were only entitled to costs on the scale set out in those Rules; and appears also to have asked the Respondent for the reasons for the ruling he was making. The Respondent said that the taxation had concluded, and in the event did not give any reasons for his decision. A Certificate of Taxation was in due course furnished by the Respondent on

7. This application for Judicial Review is for an Order of Certiorari setting aside the Certificate of Taxation on the basis that the Respondent failed to comply with the principles of natural and constitutional justice and basic fairness of procedures by his refusal to hear the Applicant after he had given his decision, and by his failure to state reasons. The application has been opposed by the Respondent, but while an affidavit was filed on behalf of the Notice Party, they did not take any part in the hearing. A preliminary point was taken that the application was either out of time or in any event should be dismissed because of delay. The application was brought within six months of the date of the Certificate of Taxation, but not within six months of the hearing. However, as the Order sought is in relation to the Certificate, I think it reasonable that the period should only start to run from the date of the Certificate. Reliance is also placed on the initial provision of Order 84 Rule 21 of the Superior Court Rules, namely that "an application for leave to apply for Judicial Review shall be made promptly" . While the Applicant in the present case allowed almost the entire six months to expire, in my view there has been no prejudice to the Respondent, and I hold that the application was brought within the time required under the Rules.

8. The Respondent has also argued that the proper procedure for the Applicant was to apply for a review of the taxation under Order 99 Rule 38. Subrules (1) and (2) of that Rule reads as follows:-

9. The Respondent further argues that the Applicant was a party within the meaning of this Rule, and refers to Order 125, where the word "party" is defined as "includes every person served with notice of or attending any proceedings, although not named on the records." In my view the Applicant could not possibly have been considered to be a party to the taxation in that sense. He did, of course, attend the proceedings before the Taxing Master, but he did so as solicitor for one of the parties to the taxation, and not in his own right. Of course, Mr. McNamee could have applied for a review of taxation, but I can see no way in which the Applicant could have required him to do so. I would hold, therefore, that it was not open to the Applicant to set in train the procedures under Order 99 Rule 38.

10. Unfortunately for the Applicant, however, I think exactly the same reasoning must apply to these proceedings. The Applicant is seeking Judicial Review of a Certificate of Taxation between Mr. McNamee and Lennon Heather & Co. The Applicant was not a party to the hearing before the Respondent, and while the Respondent certainly owed a duty to conduct the taxation in accordance with natural justice to the parties to the taxation, I do not think that he owed such a duty to the Applicant. The Applicant was not entitled in his own right to make submissions to the Respondent, nor was he entitled to seek reasons for the Respondent's decision, and any refusal by the Respondent to hear him or to give him reasons, in so far as he sought them personally, was quite correct. For that reason, the Applicant did not have a locus standi to bring these proceedings.

11. While that in one sense disposes of the matter, in view of the very small amount of money involved, I think I ought to express my views on the merits of the application, assuming that the Applicant did have locus standi. There is no challenge to the manner in which the taxation was conducted before the Respondent made his ruling. The only case made is that the Respondent ought to have allowed the Applicant to make submissions in relation to the giving of reasons, and indeed ought to have given reasons. The procedure for conducting a taxation is set out in detail in Order 99 of the Superior Court Rules. There is no provision in those Rules for the Taxing Master to give reasons for any decision he makes, except where there is a review of taxation under Rule 38. In my view Rule 38, far from requiring the Taxing Master to give reasons for his initial decision, makes it quite clear that he is only required to do so after a review of taxation. The Respondent therefore acted in accordance with the Rules in conducting this taxation.

12. The question then remains whether, as a matter of natural justice or fairness of procedures the Applicant should in any event give reasons if requested to do so. I accept that there are circumstances in which justice may require the furnishing of reasons as, for example, in Anheuser Busch Inc. -v- the Comptroller of Patents, Designs and Trademarks (1987) I.R. 329. However, in that case the reasons were required to enable the Applicant to consider whether to appeal the decision of the Respondent to the High Court. That does not arise in the present case. Indeed, the Rules themselves in Order 99 Rule 38 provide for the giving of reasons on a review, which would be for exactly that purpose. However, in the present case I cannot see how the Applicant can make the case that natural justice required that reasons be given to him. Even if he had been given reasons, and they were erroneous, it is not at all clear that any further steps would have been open to him. I can only repeat that the Applicant was not a party to the taxation, no award was made against him and the Certificate of Taxation is not addressed to him. It is not open to him to allege that there was some breach of natural justice which would entitle him to set aside the Certificate of Taxation.

13. Accordingly I will dismiss this application.