High Court of Ireland Decisions

1. This is a Motion by the first and second named Defendants pursuant to Order 99 Rule 38(3) of the Rules of the Superior Courts seeking a review of the taxation by Taxing Master James Flynn of certain items contained in a Bill of Costs. Before considering the individual items, it is necessary to set out generally the nature of the proceedings, and in particular of the Motion in respect of which these costs were awarded.

2. The action was a lengthy and complicated one which was heard over several weeks by Murphy J. It concerned a claim that a document relating to the settlement of an earlier dispute between the parties had been altered by or on behalf of the Defendants after it had been signed, and that the Defendants had conspired together fraudulently to conceal such alteration. The action was dismissed by Murphy J., and the Plaintiffs appealed this dismissal to the Supreme Court. Subsequently, two Motions came before the Supreme Court, which were heard together, one being a Motion by the first and second named Defendants to strike out the appeal for want of prosecution, and the other being a Motion by the Plaintiffs to adduce additional evidence in the Supreme Court. The hearing before the Supreme Court lasted for four days, after which the Supreme Court dismissed the application to adduce additional evidence, and awarded the costs of that Motion to the Defendants herein, such costs to be taxed in default of agreement. It is from the taxation of those costs that this Motion arises.

3. In his report on this taxation, the Taxing Master has considered the legal principles applicable in considerable detail.

4. The basis upon which this Court can review a taxation of costs is set out in Section 27(3) of the Court and Court Officers Act, 1995 which provides, insofar as it refers to the Taxing Master rather than the County Registrar, as follows:-

5. The principle upon which I must act, therefore, 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. It is on this basis that I turn to consider the individual items in dispute. These fall under six headings, which I propose to consider individually.

6. Both the Motion to dismiss for want of prosecution and the Motion to adduce additional evidence were heard at the same time, but the award of costs was only in relation to the Motion to adduce additional evidence, the costs of the other Motion being reserved. The Defendants filed one Affidavit which was used in respect of both Motions, namely, an Affidavit of Mr. Patrick O'Doherty, the Defendants' Solicitor. The Taxing Master took the view that the items claimed in respect of this Affidavit were not covered by the Order for costs and were not appropriately before him for taxation. He rejected the Defendants' submission that the principles of Fenton v. Schofield (unreported Murnaghan J. May 1967) applied. That case concerned costs incurred both in relation to a claim and counter-claim, and held that in such a case there should be an apportionment of the various items.

7. I have considered the Affidavit, and, while it was filed in support of the Motion to dismiss, there is no doubt that it is almost entirely devoted to answering the application to adduce additional evidence. The Supreme Court considered it in relation to both applications, but its importance and relevance is considerably greater in relation to the application to adduce additional evidence. I think the Taxing Master erred in principle in saying that apportionment did not apply, and I further think there could be a totally unjust result, in that it is quite possible that, when the costs of the other Motion are awarded and taxed, either the Defendants will not be awarded their costs of that Motion, or a Taxing Master would disallow most of the costs of the Affidavit on the basis that it related primarily to the application to adduce evidence. The Affidavit was obviously a vital part of the Defendants' case in successfully resisting the Plaintiffs' application in the Supreme Court. In my view there ought to have been an apportionment, and I would apportion the costs attributable to this Motion at 75% of the costs claimed in respect of the Affidavit. As the amounts claimed appear to me to be reasonable, I will allow 75% of such amounts.

8. This item was disallowed on a similar basis to the items in relation to Mr. O'Doherty's Affidavit, and logically the same principles must apply to it, and I make the same ruling in respect of that item.

9. The Defendants claimed brief fees for two Senior and one Junior Counsel at a fee of £10,000 for each Senior Counsel and the appropriate two-thirds fee the Junior Counsel. The Taxing Master only allowed one Senior Counsel, and reduced the brief fee from £10,000 to £5,000, with an appropriate reduction for Junior Counsel. In his report, the Taxing Master laid considerable stress on the fact that this was a Motion and he quoted the old case of South Meath Election Petition 32 L.R.I. 407 as authority that only two Counsel will be allowed on a Motion except in very special circumstances. As a general statement of practice I think this is correct, but in my view there were very special circumstances in the present case. This is a case which had been heard over a period of seventeen days in the High Court. The Motion was of the utmost importance, as it sought to adduce additional evidence on a dispute as to fact, which had been determined against the Defendants. The reality was that if the Motion failed, the Supreme Court almost certainly was going to uphold the findings of fact by the trial Judge, which findings went to the heart of the case. Success in this Motion might well have meant success on the appeal, or at least a retrial. In my view, this Motion was of such importance as to constitute exceptional circumstances, and I think the Taxing Master was wrong to disallow one Senior Counsel.

10. With regard to the actual amount of the fee, I think the situation is somewhat different. I appreciate that the fees were agreed by the solicitor in advance of the hearing, but that is not the only test. In the recent case of Commissioners of Irish Lights v. Maxwell, Weldon and Darley (1998) 1 ILRM 421, the Supreme Court quoted with approval a passage from the judgment of Murphy J. in Smyth v. Tunney (1993) 1 IR 451, another case between the same parties as the present one, at page 463 where he said:-

11. The Supreme Court went on to hold that ultimately the test must be the objective test of whether it would have been reasonable for a reasonably careful and reasonably prudent solicitor to have agreed the fee, and in the circumstances of the case held that it would not have been reasonable. That was a case relating to the costs of an appeal to An Bord Pleanala, where there was only one Senior Counsel who marked a fee of 30,000 guineas. It was a brief fee in respect of a planning matter which lasted as an oral hearing for seven days, and in which it was accepted that Counsel could be said to have lived with the case week by week for approximately four months and it was a case clearly requiring his exclusive attention at the hearing, irrespective of any other commitment he might have. Notwithstanding this, the Supreme Court reduced the fee claimed to £15,000. If I take that as an example of a recent case in which Senior Counsel's fees were considered, then I am driven to the conclusion that a reasonable solicitor would not have agreed to a fee of £10,000 on a Motion of this nature to be heard on Affidavit, no matter how important it might be, where two Counsel were being briefed. Had only one Counsel been briefed, then a fee of £10,000 would probably have been appropriate, but as I feel that the Defendants were entitled to brief two Senior Counsel, I think the fee is inappropriate. Accordingly, I would rule that two Senior Counsel should be allowed, but that the fee for each of them should be £5,000 with a resultant reduction in the Junior Counsel's fee.

12. The Supreme Court specifically ordered in this case that written submissions be furnished to the Court in advance of a hearing. The Taxing Master has disallowed all fees in connection with such submissions, primarily on the basis that they were part of the overall brief fee. He also relied on the English case of Loveday v. Rentin (1992) 3 All ER 184 where it was held that unless some different agreement had been made, the brief fee must take written submissions into account. The Taxing Master also quoted the Practice Direction in respect of written submissions in the High Court, which provides that Counsel's fee for preparing submissions may be awarded by the trial Judge.

13. I do not think that that ruling can really affect the position of costs where written submissions are specifically directed by the Supreme Court, rather than under a general direction as in the case of the High Court. Written submissions are frequently directed in the Supreme Court, as they greatly shorten the length of a case, and also enable the Court to have some feeling for the issues in advance of the hearing. An important distinction in the Supreme Court is that the written submissions are considered in the light of the transcript of the evidence, and I think that must have been so in the present case, in that the evidence heard at the trial must have been extremely relevant to the issue of whether additional evidence ought to be permitted. I think the Taxing Master erred in applying what may be a correct ruling in relation to a hearing at first instance to the circumstances of an appeal to the Supreme Court, or indeed a Motion directed to the Supreme Court as this was. I have no doubt that the submissions took a considerable time to prepare, and I think it would be unjust if fees were not allowed in respect of them. With regard to the amount of the fee, I think what I understand to be the normal practice should apply, namely that it should be the amount of one refresher for each Counsel.

14. Basically the same principles apply to Counsel's refreshers as apply to the brief fees. I would allow the refreshers to both Seniors, but I would not interfere with the amount.

15. The Taxing Master reduced the solicitor's instructions fee from a figure claimed of £22,500 to £7,500, a very substantial reduction. His attitude to the instructions fee was rather similar to his attitude to the taxing of fees for a second Senior Counsel, and I think he made the same basic error of underestimating the importance of the Motion in considering the instructions fee. I also think that he did not take into account sufficiently the fact that this was not an ordinary appeal to the Supreme Court, but was an application to adduce new evidence, which must have involved the solicitor in considerable work in investigating the new evidence. Having said this, however, I also feel that the amount claimed by the solicitor was excessively high, and I think justice would be done by allowing him a figure of £15,000.