High Court of Ireland Decisions

1. Each of the Plaintiffs claims a declaration of entitlement to interest as and from 29th July, 1994, on the costs payable under Orders dated 29th July, 1994, made in favour of each at the conclusion of the Tribunal of Inquiry which has become known colloquially as the Beef Tribunal. Further, each of the Plaintiffs claims an order for payment of such interest as and when the same is determined.

2. The Tribunal was established pursuant to resolutions of Dail Eireann passed on 24th May, 1991, and of Seanad Eireann passed on 29th May, 1991 by order of the Minister for Agriculture and Food made on 31st May, 1991. It was provided in the Order that the Tribunals of Inquiry (Evidence) Acts, 1921 and 1979 (" the Act of 1921 " and " the Act of 1979 ") should apply to the Tribunal. On 21st June, 1991, each of the Plaintiffs was granted authorisation to be represented before the Tribunal by Counsel instructed by solicitor, such authorisation being granted under the provisions of Section 2(b) of the Act of 1921.

3. Each of the Orders made on 29th July, 1994 contained recitals in the following terms:-

4. The curial part of the Order in favour of the first named Plaintiff, in so far as it is relevant for present purposes, was in the following terms:-

5. The curial part of the Order in favour of the second named Plaintiff was in similar terms, save that it provided for taxation of the costs of appearing before the Tribunal by three counsel instructed by a solicitor.

6. Section 6 of the Act of 1979, which was first recited in each of the Orders, provides as follows:-

7. Section 4 of the Act of 1979, which was also recited in each of the Orders, provides as follows:-

8. The Plaintiffs delivered bills of costs in September 1995, which were duly taxed by the Taxing Master. The Defendant carried in objections against allowances made by the Taxing Master and sought a review of same. The Defendant was dissatisfied with the decision of the Taxing Master on the review and applied to this Court for an Order to review the taxation. This matter was heard immediately following the hearing of the review but before judgment was delivered on the review.

9. By letter dated 11th January, 1996 from the Plaintiffs' solicitors to the Chief State Solicitor, the Plaintiffs gave notice of their claim to interest in the following terms:-

10. At the date of that letter the bills of costs had been delivered, but the first stage of the taxation process was not completed.

11. The issue for determination is whether the Plaintiffs are entitled to recover interest in respect of the costs as finally ascertained by taxation and, if so, from what date does the interest run; whether it runs from 29th July, 1994, the date of the Orders, or from 11th January, 1996, the date of the letter giving notice of the claim to interest. Of necessity, the Court is concerned at this juncture only with this issue of principle, not with quantification of any interest found due. The Plaintiffs' claim is for interest at the court rate, that is to say, 8% per annum .

12. The Plaintiffs contend that they are entitled to interest on the costs payable on foot of the Orders of the Tribunal on three distinct bases, namely:-

13. The Defendant's position is that he is not liable for interest on any basis.

14. Before considering each of the bases of claim advanced by the Plaintiffs in depth, I think it would be useful to outline the legal position in relation to interest on costs awarded in an action in the High Court, as to which there is no dispute between the parties.

15. The primary source of the entitlement to interest on a judgment for costs is the Act of 1840. Section 26 of the Act of 1840 provides as follows:-

16. Section 27 of the Act of 1840 provides as follows:-

17. Section 20 of the Courts Act, 1981 gave the Minister for Justice power to vary by Order the rate of interest standing specified in section 26 of the Act of 1840 from time to time. Since 1989 the relevant rate has been 8%.

18. The position, accordingly, is that a judgment for money, including a judgment for costs, carries interest at the rate from time to time standing specified in section 26 of the 1840 Act, which rate is commonly referred to as " the Court rate ". The provisions of the Rules of the Superior Courts, 1986 (" the Rules" ) dealing with the execution of judgments accommodate this. Rule 3 of Order 42 of the Rules provides that a judgment for the recovery by or payment to any person of money may be enforced by an execution order. Rule 15 of Order 42 provides as follows:-

19. While the issue as to the date from which interest on an order for costs runs, whether from the date of the order or from the date of the taxation of the costs, has been a source of some controversy in the past, the parties agree that it is now settled law that interest runs from the date of the order. Most recently, this principle was restated in this Court by Murphy J. in Best -v- Wellcome Foundation Limited [1995] 1 I.L.R.M. 554, in which the decision of the Supreme Court in Attorney General (McGarry) -v- Sligo County Council (No.2) [1989] I.L.R.M. 785 was distinguished on the basis that that decision related to a claim for pre-judgment interest.

20. The settled jurisprudence of the Superior Courts on entitlement to interest on an order for costs governs a variety of situations other than the common situation where by order of the High Court a party is awarded costs and, there being no agreement as to the quantum of the costs, the costs have to be taxed, in which case, under the general rule, interest runs on the costs from the date of the order of the High Court, not from the date on which the costs are quantified on completion of the taxation. One such situation arose in Cooke -v- Walsh [1989] I.L.R.M. 322, in which the party in whose favour the order for costs had been made has been unsuccessful in the High Court, but had succeeded in the Supreme Court, which ordered the paying party to pay the costs of the proceedings in the High Court and in the Supreme Court, when taxed and ascertained. The Supreme Court held that interest ran on the High Court costs from the date of the order of the High Court. I mention this authority because of the reliance placed by Counsel for the Plaintiffs on the following passage from the judgment of McCarthy J. at page 325:-

21. In developing his argument based on the doctrine of unjust enrichment, Counsel for the Plaintiffs advanced the foregoing passage as a recognition of a broad principle of equity underlying an entitlement to recover interest on costs. However, it is clear from the next passage in the judgment that the decision of the Supreme Court was actually founded on the provisions of section 26 and section 27 of the Act of 1840 and of Order 42, rule 15 of the Rules, and not on any broad equitable principle.

22. In developing his argument grounded on the doctrine of unjust enrichment, Counsel for the Plaintiffs also referred to an unreported judgment delivered on 8th March, 1995 in this Court by Barron J. in Best -v- Wellcome Foundation Limited . The issue with which that judgment was concerned arose from the fact that the defendant had paid to the plaintiff, on foot of an interim certificate issued by the Taxing Master pursuant to Order 99, rule 38(1), a sum in respect of the plaintiff's costs in excess of the plaintiff's ultimate entitlement. The defendant sought to recover the excess together with interest and Barron J. held that the excess should be repaid with interest because "it would be unjust not to direct repayment with interest since the Plaintiff has had the benefit of this sum ". The factual situation which had arisen in that case is not covered by legislation or by the Rules.

23. In summary, it is clear on the authorities that the entitlement to interest on an order for costs made in the High Court is statute based and rule based.

24. In outline, the submissions made by Counsel for the Plaintiffs in support of the Plaintiffs' contention that the orders of the Tribunal carry interest from the date of the Orders on the same principle that an order made in the High Court carries interest from the date of the order were as follows:-

25. That provision applies to the costs awarded by the Orders of the Tribunal and, unless it is to be meaningless, so also must Order 42, rule 15.

26. Counsel for the Defendant took issue with all of the foregoing propositions. In particular, Counsel for the Defendant submitted that the proposition advanced on behalf of the Plaintiffs, that the effect of the Orders of the Tribunal was to equate the Order for costs made by the Tribunal with an order for costs made by the High Court, is fundamentally in error.

27. In my view, the proposition that an order for costs made by a Tribunal of Inquiry can have the same effect, to the extent of carrying interest at the Court rate, as an order of this Court cannot be correct. The nature of a Tribunal of Inquiry established under the Acts of 1921 and 1979 and the nature of its functions were considered by the Supreme Court in judicial review proceedings initiated by the Plaintiffs in 1991 challenging the validity of the resolutions of Dail and Seanad Eireann setting up the Beef Tribunal having regard to the provisions of the Constitution. What emerges from the judgments of the Supreme Court in Goodman International -v- Mr. Justice Hamilton [1992] 2 I.R. 542 is that a Tribunal of Inquiry is not a court and its functions do not involve the administration of justice. The following passage from the judgment of Hederman J. at page 601 encapsulates the reasoning of the Supreme Court:-

28. The position of a Tribunal in relation to awarding costs before the enactment of section 6 of the 1979 Act, which was alluded to in the foregoing passage from the judgment of Hederman J., was considered in this Court in an unreported judgment delivered by Gannon J. on 15th July, 1977 in K Security & Another -v- Ireland and the Attorney General. The claim in those proceedings arose out of the so called "Seven Days" Tribunal. The plaintiffs, who had been authorised by the Tribunal to be represented by a solicitor and counsel, claimed a declaration that their costs in respect of their representation should be paid out of public funds. In his judgment Gannon J. at page 8 stated as follows:-

29. Later in his judgment Gannon J. dealt with the manner in which an enactment may provide for payment of money out of public funds and stated at page 9:-

30. It may be that the enactment of section 6 of the Act of 1979 was a reaction to that decision. In any event, the significance of the decision is that, save and in so far as the Act of 1979 empowers it to make an order for costs, a Tribunal established under the Acts of 1921 and 1979 has no power to award costs or other monies to a party represented before it. Moreover, such a Tribunal is only empowered to direct payment by the Minister for Finance, pursuant to an order made under Section 6, out of monies provided by the Oireachtas to the extent that is clearly so expressed in the Act of 1979.

31. In essence, the Plaintiffs' case is that by the combined operation of sections 4 and 6 of the Act of 1979 the Tribunal was empowered not only to order that the costs of the Plaintiffs be paid out of monies provided by the Oireachtas, but also to extend the provisions of sections 26 and 27 of the Act of 1840, which allow for interest on an award of costs, and also the mechanisms provided in the Rules, which allow for execution for costs and interest without further order, to the Plaintiffs. It is also the Plaintiffs' case that the Tribunal exercised those powers. I did not understand the Plaintiffs to contend that section 6 on its own empowered the Tribunal to make an order for costs, which would carry an entitlement to interest. The issue is whether the powers conferred on the Tribunal by section 4 amplified the Tribunal's power in relation to the award of costs in the manner contended for. In my view, it did not do so on any construction of section 4.

32. First, on a literal interpretation of section 4, a Tribunal is limited to making orders which it considers " necessary for the purposes of its functions ". The type of order which might be " necessary for the purposes of its functions " and which a Tribunal is authorised to make under section 4 was considered by McCarthy J. in his judgment in Goodman International -v- Mr. Justice Hamilton where he stated at page 605:-

33. Making provision for interest on costs ordered to be paid to a party represented before the Tribunal or for rendering the order for costs self executing are not matters which are necessary for the purposes of the investigative, fact finding and reporting remit of a Tribunal. Moreover, in my view, such acts cannot be regarded as coming within the expression in section 4 ' such powers, rights and privileges as are vested in the High Court or a judge of that Court '. That an order for costs made in the High Court carries interest from the date of the order is a matter of substantive law: sections 26 and 27 of the Act of 1840. That an order for costs and interest is self-executing is attributable to Order 42, rule 15, of the Rules. Neither consequence is attributable to any power, right or privilege enjoyed by a Judge of the High Court in respect of the making of an order.

34. Secondly, the construction of section 4 contended for by the Plaintiffs would render Section 6, sub-section (1) superfluous. Similarly, the provisions of Section 3 of the Act of 1979, which address and provide a sanction for disobeying summonses and orders of a Tribunal and acts and omissions which would amount to a contempt of court, would be superfluous. Such a construction can hardly have been intended by the legislature.

35. Thirdly, a construction of section 4 which would allow for a Tribunal making an order for costs which was self-executing would be at variance with section 6(2), which expressly provides that the manner of recovery of costs payable pursuant to an order made under section 6 is as a simple contract debt in a court of competent jurisdiction. Moreover, and more fundamentally, a construction of section 4 which allowed a Tribunal established under the Acts of 1921 and 1979 to make an order for costs which was self-executing would be open to the challenge of invalidity having regard to the provisions of the Constitution. One of the indicia of the administration of justice is that a court order for costs is self-executing. A power analogous to the power of a Tribunal under section 6(1) of the Act of 1979 to order that the costs of a person appearing before it be paid by another person, is the power of the Registrar of Friendly Societies, under section 13(3) of the Industrial and Provident Societies (Amendment) Act, 1978, to direct that all expenses of and incidental to an investigation under that section shall be defrayed out of the funds of the Society under investigation or by the members or former members or officers of the Society in such proportions as he shall direct. That power was considered by the Supreme Court in The State (Plunkett) -v- The Registrar of Friendly Societies [1998] 4 I.R. 1. Having set out the five characteristic features of the administration of justice identified by Kenny J. in McDonald -v- Bord na gCon [1965]) I.R. 217, O'Flaherty J., delivering the judgment of the Court, stated as follows at page 5-6:-

36. On the same reasoning, an order under section 6 (1) or any other provision of the Act of 1979 is not and cannot be self-executing. The person who is entitled to the benefit of such an order must institute proceedings in a court of competent jurisdiction to enforce it, as provided for in section 6 (2). A Tribunal is not a court and it is not involved in the administration of justice. That being the case, it cannot have been the intention of the legislature that, by virtue of section 4, it should have power to render an order made under section 6 (1) self-executing.

37. On the proper construction of the Act of 1979, in my view, the only power which the Tribunal has to award costs to a party appearing before it, is the power contained in section 6. A Tribunal has no power or authority by virtue of section 4 to make an order for costs which is more ample or more easy of execution than is provided for in section 6. On its proper construction section 6 empowers a Tribunal to order that the costs of a party appearing before it, as taxed by the Taxing Master, shall be paid by another person. The Tribunal has no power to order that the costs so ordered to be paid should carry interest for any period. The only manner in which such an order can be enforced is by initiating proceedings for recovery of the sum in question as a simple contract debt in a court of competent jurisdiction. If the order is made against the Minister for Finance, the sum payable, which is limited to costs and not interest on the costs, is payable out of the Exchequer. If the legislature had intended that an order for costs made against the Minister for Finance would carry interest, it would have had to expressly provide for the payment of costs together with interest in section 6. It did not do so.

38. Turning to the construction of the Orders of the Tribunal; in my view, on their proper construction, the Tribunal did not purport to incorporate in them, or apply to the Orders thereby made, the provisions of sections 26 and 27 of the Act of 1840 or the provisions of the Rules in relation to the execution of Orders for costs. The Tribunal did no more than it was permitted to do by section 6(1). It directed the taxed costs of the Plaintiffs to be paid by the Defendant. It directed the basis on which the costs were to be taxed, for example in the case of the first named Plaintiff, limited to the costs employing of a solicitor and two Counsel taxed on a party and party basis and subject to the other limitations specified. It applied the statutory provisions and the Rules of the Superior Courts relating to the taxation of costs in an action in the High Court (including provisions relating to review and appeal) " in so far as is practicable" to the taxation. In doing so, the Tribunal did no more than state the obvious. The power which the Tribunal had by virtue of section 6(1) was to order the payment of costs " as taxed by a Taxing Master of the High Court ". The Taxing Master of the High Court taxes costs in accordance with the relevant statutory provisions and the Rules, which at the time the Orders in question here were made were the relevant provisions of the Courts (Supplemental Provisions) Act, 1961 and Order 99 of the Rules. Order 99 was incorporated in so far as was practicable. As a matter of construction, it was clearly not intended that Order 99, rule 37 (34) would be incorporated because that provision is at variance with section 6(2,) which provides the only manner of enforcement of the Orders for costs made by the Tribunal. It was suggested that, if the Tribunal had not expressly referred to the provisions in Order 99 in relation to review and appeal, these provisions would not have been incorporated in the Order. That suggestion is not correct. The Orders, the benefit of which the Plaintiffs obtained by virtue of the exercise by the Tribunal of its power under section 6(1), were orders for payment of costs as taxed by the Taxing Master; in other words, for payment of the sums appearing in the final certificates of the Taxing Master. If a party to a taxation seeks a review under Order 99, rule 38(1), a final certificate does not issue until after the Taxing Master decides on the objections. Where the taxation is reviewed by this Court under Order 99, rule 38(3), after the determination by the court the matter is remitted to the Taxing Master to complete the taxation in accordance with the decision of the court and to issue the final certificate of taxation as provided in rule 38(6). The Orders made by the Tribunal in the instant case conform with Section 6(1) in that they allow for taxation up to the issue of the final certificate of taxation, which will evidence the quantum of costs to which the Plaintiffs are entitled.

39. In applying the statutory provisions and the rules " relating to taxation of costs " to the costs ordered to be paid to the Plaintiffs, the Tribunal did not purport to apply the provisions of the Act of 1840 or of Order 42 to the award of costs. If the Tribunal had purported so to do, it would have been acting ultra vires. However, as a matter of construction of the Orders it did not do so. As I have already stated, the provisions of the Act of 1840, as amended by the Act of 1981, are provisions of substantive law which determine when, for how long and at what rate a court judgment for money carries interest. They are not provisions relating to taxation of costs. They apply to an order for costs, whether the costs are measured by the Court or quantified by agreement or on taxation. The provisions of Order 42 in relation to execution relate to the manner of execution of all money judgments. They are not provisions relating to the taxation of costs. In the case of an order for costs which is the subject of taxation, the taxation is completed by the issue of a final certificate of taxation.

40. The effect of the Orders made by the Tribunal is to entitle the Plaintiffs to recover the sums which appear on interim and final certificates of taxation issued by the Taxing Master from the Minister for Finance, if necessary by suing in debt in this Court. They do not entitle the Plaintiffs to any interest on the sums in question prior to the date of the issue of interim or final certificates of taxation as the case may be. They do not entitle the Plaintiffs to recover the sums due in any manner other than by suing in debt.

41. The Orders do not have the effect contended for by the Plaintiffs and this basis of claim fails.

42. The essential difference between section 26 and section 27, on the one hand, and section 53, on the other hand, is that the former come into play once judgment has been given, whereas the latter comes into play before judgment is given. Section 26 and section 27 provide that a judgment debt automatically carries interest. However, the effect of section 53 is to allow in the assessment of the amount for which judgment should be given that interest be added to a substantive claim, subject however to compliance with the formalities prescribed in section 53.

43. It is the Plaintiffs' case that the letter dated 11th January, 1996, which gave the Defendant notice that the Plaintiff was claiming interest, triggered an entitlement, from the date of that letter, to interest on the amount of the costs when eventually taxed, subject, of course, to giving credit for the amounts paid on foot of interim certificates which have issued. Counsel for the Defendant identified a number of impediments to the recovery of interest by the Plaintiffs under section 53.

44. It was submitted on behalf of the Defendant that there is no debt or sum certain payable within the meaning of section 53. A debt only arises under section 6(2) and a sum certain only becomes payable when a final certificate of taxation issues, although it was conceded, rightly in my view, that a debt or a sum certain would be payable on the issue of an interim certificate. The claim under section 53, it was submitted, is premature. Section 53 could only be invoked after taxation if the Defendant did not pay on foot of the certificate of taxation.

45. It was also submitted on behalf of the Defendant that the Plaintiffs had not established compliance with the formalities required in section 53, in that there must be a demand for payment of the debt or sum certain, coupled with notice that interest is being claimed. They pointed to the decision of the Supreme Court in East Cork Foods Limited -v- O'Dwyer Steel Company Limited [1978] I.R. 103 as authority for the proposition that the requirements of section 53 must be strictly adhered to. The letter of 11th January, 1996 did not comply with the requirements of section 53 and it could not have so complied because the costs were not quantified at that date and, more fundamentally, as I have held, the Defendant's liability to pay had not accrued because taxation was not completed.

46. However, the Plaintiffs also made the case that, even if the formalities stipulated in section 53 have not been complied with, they have an equitable claim for interest. They rely on a passage from the judgment of Lord Herschell in London Chatham and Dover Railway Company -v- South Eastern Railway Company at page 436 in which the Lord Chancellor was considering the position of a creditor whose debtor refused to exchange accounts as agreed, thus preventing the creditor from quantifying the debt. In relation to this type of situation, Lord Herschell stated as follows:-

47. The assumption underlying the foregoing passage is that the debtor was liable to pay the unquantified amount at the time notice was given. That is a different situation to the situation which pertains in the instant case. As I have said, on the proper construction of the relevant Order in the context of the enabling provision, the Defendant only becomes liable to pay the costs on the issue of a certificate of taxation. It is not merely a question in the instant case of non-compliance with formalities; rather section 53 does not come into play at all at this juncture because there is no debt or sum certain payable. In the circumstances, the Plaintiffs have no entitlement in equity to section 53 interest.

48. Counsel for the Plaintiffs took as a starting point for their argument that the Plaintiffs are entitled to interest on the costs under the doctrine of unjust enrichment, the passage from the judgment of McCarthy J. in Cooke -v- Walsh , which I have quoted above, which they pointed to as establishing that a broad principle of equity underlies the entitlement of a party to interest on costs awarded to him in legal proceedings. They argued that the Plaintiffs are entitled to invoke this equitable principle to found their claim for interest on the costs to which they are entitled by virtue of the Orders of the Tribunal, because the basis on which they were awarded costs in the Orders was on a party and party basis, that is to say, on an indemnity basis. They also pointed to the fact that it was recited in the Orders of the Tribunal that it was equitable that the Defendant should pay their costs as provided for in the Orders.

49. Counsel for the Plaintiffs advanced two formulations of the Plaintiffs' entitlement to interest on the basis of a restitutionary action. The first is based on the fact that the Plaintiffs have discharged the whole of the disbursements and most of the solicitor's instruction fee on account, which is not disputed by the Defendant, and have been at the loss of these monies. The Defendant, on the other hand, whom they contended has been under a legal liability to discharge the costs since the date of the Orders of the Tribunal has had the benefit of the monies. It is unjust in those circumstances that the Plaintiffs should have to bear the loss. On the authorities, they argued, in such circumstances the party who has had the benefit of the monies is required to compensate the party who made the payment. The second is based on the fact that the Plaintiffs were under an obligation to discharge the costs and they have done so. Thus the Plaintiffs have discharged a liability imposed on them but it is a liability which they are entitled to recover from the Defendant. Under the principle enunciated in Moule -v- Garrett, [1872] L.R. 7 Ex 101 to which I will refer later, the Plaintiffs contended that they are entitled to recover from the Defendant because under compulsion of law they have paid money for which the Defendant is ultimately liable. The existence of a restitutionary cause of action for the primary amount carries with it a right to interest.

50. In their submissions, Counsel for the Defendant rejected the proposition that an entitlement to interest arises under the doctrine of unjust enrichment. They put the provisions of the 1979 Act into their historical context. Before the enactment of the 1979 Act, a person who was authorised to be represented before a Tribunal of Inquiry had no entitlement to be indemnified in respect of his legal costs by any other person. Section 6 of the Act of 1979 empowered a Tribunal to make an Order for costs but it did not empower a Tribunal to make provision for the payment of interest on the costs. It would be inappropriate, it was submitted, to invoke the ill-defined doctrine of unjust enrichment to alter the statutory regime embodied in the Act of 1979. In any event, it was submitted on behalf of the Defendant, the circumstances which prevail in the instant case do not come within the doctrine of unjust enrichment. The common thread running through the authorities relied on by the Plaintiffs, it was urged, is the existence of a wrongful act or omission by the party required to make restitution. In the instant case, the Defendant is obliged to pay the costs not in the context of the righting of a wrong, but in the context of a statutory provision which provides for a type of " quasi legal aid ." The costs alone could not be the subject of a restitutionary claim. While the Defendant has had the benefit of the monies, he is entitled to retain the monies until the taxation process is completed.

51. Before considering the authorities relied on by the Plaintiffs, I think it is useful to call to mind the comment made by Keane J. in O'Rourke -v- The Revenue Commissioners [1996] 2 I.R. 1 at page 18 that, as in other common law jurisdictions, the doctrine of unjust enrichment has been developed in this jurisdiction incrementally on a case by case basis, so as to ensure that a vague and unchartered area of the law in which "palm tree justice" flourishes is not judicially encouraged.

52. Chronologically, the earliest authority relied on by the Plaintiffs is the decision of the Supreme Court in East Cork Foods Limited -v- O'Dwyer Steel Company Limited There, a plaintiff had settled his personal injuries action in the High Court against the two defendants for £25,000 and the issues between the defendants were tried by the trial judge, who apportioned blame between the first named defendant and the second named defendant on a 20%/80% basis. On appeal to the Supreme Court, that Court found the first named defendant 100% at fault. On foot of the Order of the High Court, the second named defendant had contributed £20,000, being 80% of the agreed damages, to the first named defendant. The issue was whether the first named defendant should repay the sum of £20,000 to the second named defendant together with interest, or, alternatively, a sum for loss of profit.

53. As to the basis on which the second named defendant was entitled to a return of the sum of £20,000, Henchy J. stated as follows at page 108-109:-

54. The claim for interest was made under section 53 of the Act of 1840 and failed for non-compliance with the formalities stipulated in that section. In dealing with the claim for loss of profit, Henchy J. analysed what had happened when the second named defendant paid the monies to the first named defendant in the following passage at page 111:-

55. Later in his judgment, at page 112, Henchy J. considered the consequences of the sum of £20,000 having been held by the first named defendant as a constructive trustee in the following passage:-

56. The claim for loss of profit did not succeed because there was no evidence that the second named defendant made a loss or that the first named defendant made a profit. What is interesting is that, if the second named defendant had been awarded an accretion to the sum of £20,000, it would have been on the basis that it was part of the measure of damages to which he was entitled in order to achieve restitution, and the basis of his entitlement to restitution was that the first named defendant was at fault in securing the payment of the sum of £20,000 to itself and held that sum as a constructive trustee.

57. In that case, interest was allowed as part of the measure of the plaintiff's measure of damages in quasi contract.

58. The next authority relied on by the Plaintiff is Private Motorist Protection Association Limited -v- Private Motorist Provident Society Limited , in which an unreported judgment was delivered by Murphy J. on 27th June, 1994. That case was decided at a time when both the plaintiff company and the defendant society, which were closely related, were in liquidation. What was at issue was the amount of interest, if any, which should be paid to the plaintiff on monies which had been paid by the plaintiff to the defendant on foot of a transaction which was ultra vires the plaintiff and void. Having quoted the last passage of the judgment of Henchy J. in East Cork Foods -v- O'Dwyer Steel , which I have quoted earlier, Murphy J. stated that the reality of the case before him was that the defendant had never received any proper title to the monies and necessarily held the monies in a fiduciary capacity and would therefore be accountable for any profit made thereon, if appropriate evidence to that effect were available. However, the basic right of a beneficiary in such circumstances was to "the Court rate" on his money. Murphy J. rejected an argument that the plaintiff was entitled to some more advantageous rate of interest than the Court rate, which he described as " a sum awarded or allowed by way of restitution independently of the efforts of the parties and, of course, free from any element of risk".

59. The last authority relied on by the Plaintiffs is O'Rourke -v- The Revenue Commissioners . The facts in that case were that in each year from 1979/80 to 1987/88 the defendants had received sums which had been deducted from the plaintiff's salary on the basis that he was taxable under Schedule E rather than under Schedule D of the Income Tax Act, 1967, which resulted in an agreed overpayment to the defendants of £23,139, which sum was refunded to the plaintiff on 23rd June, 1989. The issue on the Circuit Appeal was whether the plaintiff was entitled to interest on the sums which had been deducted up to 23rd June, 1989 and, if so, at what rate. In his judgment, Keane J. stated that it was important at the outset to identify the basis in law on which the sum of £23,139 was repaid by the defendants to the plaintiff. As to the consequences of one possible basis he stated as follows at page 9:-

60. Later in his judgment, at page 18, Keane J. found that such indeed was the basis on which the repayment was made to the plaintiff in the following passage:-

61. Keane J. went on to hold that neither the overdraft rate nor the deposit rate of interest was appropriate and that the appropriate rate of interest was the Court rate.

62. The rationale of the decision of Keane J. was that the tax in question was paid to the Revenue Commissioners under a mistake of law and was recoverable as a matter of right and the plaintiff was entitled to interest on it as part of the measure of his damages.

63. While, in my view, it is unnecessary for present purposes to consider the theoretical basis on which the principal monies with interest or loss of profit were, or subject to the proofs being in order, would have been recoverable in the foregoing authorities, even a superficial analysis of them reveals that in all of them the party against whom the claim for restitution was made had received the monies or retained the monies in issue in circumstances which involved unconscionable conduct or wrongdoing in the broadest sense of that word: in circumstances in which he was under an obligation to repay or pay the monies to the claimant but he had not done so, so that the monies were thereafter held by him in fiduciary circumstances. The entitlement of the party claiming restitution to loss of profit or interest arose as part of the measure of his damages on his claim for restitution.

64. In my view, there is no way in which the principles to be derived from the authorities can support the Plaintiffs' claim for interest. By virtue of the Orders of the Tribunal made on foot of the power conferred by section 6 of the Act of 1979 the Plaintiffs have an entitlement to and the Defendant has an obligation to pay costs on the basis stipulated in the Orders as taxed by a Taxing Master of the High Court. There is no other basis whatsoever on which the Plaintiffs are entitled to or the Defendant is obliged to pay the Plaintiffs' the costs or any of them. The Defendant's liability is for costs "as taxed". The process of taxation is ongoing. It is a process which the Defendant is entitled to exhaust by initiating a review before the Taxing Master, a review in this Court and an appeal to the Supreme Court, in the quantification of his liability. Until the taxation process is completed and the liability of the Minister is quantified by the issue by the Taxing Master of a certificate of taxation, there is no wrongdoing or unconscionable conduct involved in the failure of the Defendant to pay the costs and there is no basis on which he could be regarded as holding the monies in question in fiduciary circumstances or circumstances in which he is unjustly enriched at the expense of the Plaintiffs. Apart from the Defendant's liability on the interim certificate of taxation, which I understand has been discharged, no liability has arisen to pay the costs to date. It follows that no question arises of the Defendant being unjustly enriched and there is no basis on which the Plaintiffs are entitled to interest as part of a restitutionary claim.

65. The Plaintiffs have failed to establish an entitlement to interest on any basis and their claim is dismissed.