High Court of Ireland Decisions

1. This matter came before the Court by way of several motions pursuant to Order 99, Rule 38(3) of the Rules of the Superior Courts, 1986 to review the taxation of the Bill of Costs presented by the first and fourth named Defendants pursuant to an award for costs granted at the conclusion of the hearing of the above entitled action on the 18th February, 1998. The specific items in dispute are later specified but consist of:

2. The substantive proceedings arose from catastrophic flooding in Bray which occurred on the night of the 25th and early morning of the 26th August, 1986 during the storm known as “Hurricane Charlie” which struck the East coast and in particular Counties Dublin and Wicklow with great ferocity causing severe flooding in the environs of Bray town and in particular the area known as “Little Bray”. Upwards of 500 properties were damaged, consisting of both residential and commercial properties, one of which was the Plaintiff’s premises in Little Bray.

3. The ensuing damage led to widespread claims being brought against various insurers, one of whom, Eagle Star, exercised its subrogation rights to seek recompense via Superquinn against the various Defendants herein. It is accepted that, in addition to Superquinn’s claim for £250,000, there were many other claims pending against the same Defendants arising from the same flooding, with a total value of approximately £10,000,000. Following the decision of Laffoy J in these proceedings, which was not appealed to the Supreme Court, these other claims were withdrawn.

4. The hearing at different times before Laffoy J lasted for twenty-seven days between the 3rd December, 1996 and the 19th March, 1997. Judgment was reserved and ultimately delivered on the 18th February, 1998. The judgment completely exonerated all of the Defendants from any responsibility and costs, together with all reserved costs, were awarded to the first and fourth named Defendants on the 5th March, 1998.

5. In the hearing before Laffoy J two Senior Counsel appeared with Junior Counsel for Superquinn, as was also the case for Bray UDC. The fourth Defendant was represented by a single Senior Counsel and Junior.

6. The Bills were taxed by the Taxing Master on the 2nd and 3rd February, 1999, following which the Taxing Master delivered a brief ex tempore ruling. Objections were carried in by the parties and these objections were heard on 10th June, 1999. The Taxing Master’s reserved ruling, in which he declined to alter any of the allowances in dispute, was delivered on the 23rd July, 1999.

7. The First named Defendant was the sanitary authority for the functional area in which the Plaintiff’s premises were situated and was also responsible for planning and directing drainage construction works being carried out in the area by the Third named Defendant under contract with the First named Defendant. The fourth named Defendant was the owner, occupier and body responsible for an artificial lake or reservoir located upstream of the river which ran adjacent to the Plaintiff’s premises.

8. On the night of the 26th August, 1986, and in the early hours of the following morning during the course of the storm known as Hurricane Charlie, the river burst its banks and caused extensive flooding.

9. The Plaintiff in the proceedings alleged negligence and nuisance against the First, Third and fourth named Defendants, after discontinuing its proceedings against the Second and Fifth named Defendants, for injury and loss caused to its property by the flooding.

10. It was alleged that the First named Defendant caused or contributed to the flooding of its premises because of the manner in which the drainage construction works in the river were being executed prior to the storm, in particular that the river defences were breached and the flow of the river obstructed by temporary works and machinery.

11. The Plaintiff alleged that the Third named Defendant was liable for the manner in which the works were being carried out.

12. On the night of the storm, the dam failed and the Plaintiff alleged that the waters released by the failure joined the river thereby increasing the volume and level of the river and, in consequence, causing or contributing to the flooding. It alleged that the fourth named Defendant was liable for failing to properly use and maintain the dam and to provide and maintain an effective arrangement for releasing waters from the reservoir when the level of the reservoir rose.

13. It further alleged that the existence of the reservoir constituted an unnatural use by the fourth named Defendant of its land and that this Defendant was liable under the rules in Rylands -v- Fletcher for the escape of water and the resulting flooding of the Plaintiff’s premises.

14. In dismissing the Plaintiff’s claim, Laffoy J held that the First named Defendant was immune from an action based on nuisance and was free from liability unless it was negligent in the exercise of its statutory duty by virtue of Section 17 of the Public Health (Ireland) Act, 1878. In the absence of proof of negligence, no liability attached to the First named Defendant or to the Third named Defendant, which executed the works under contract with the First named Defendant.

15. She further held that the Plaintiff had not established a causal link between the use and lack of proper maintenance of the dam prior to the storm and to the dam failure. It was the effect of the enormous volume of water flowing over the crest of the dam at the height of the storm that caused the dam failure.

16. She further held that the creation of an artificial lake or reservoir was an unnatural use of land within the meaning of the rule in Rylands -v- Fletcher . The fourth named Defendant could reasonably have foreseen that, if the dam failed and the impounded water escaped, it would flow into the river and that flooding damage of the riparian properties downstream would ensue.

17. Finally, she held that, in determining whether the fourth named Defendant was absolved from liability for the consequences of the dam failure by reliance on the defence of Act of God or vis major, the test to be applied was whether the storm could reasonably have been anticipated or guarded against by this Defendant. Most extremely natural phenomena which could not reasonably have been anticipated or guarded against were Acts of God.

18. The report of the case which appears in the Irish Report, (1998) 3 IR at p. 542 runs to some twenty-seven pages. However, the full judgment delivered on the 18th February, 1998 runs to eight-five carefully reasoned pages. Because the Ruling of the Taxing Master does not address specifically any of the facts or issues, it is incumbent on this Court to do so in this review.

19. The judgment commences by reciting in broad outline the bases of the Plaintiff’s claims against the various Defendants.

20. The learned Judge then considered evidence adduced at the hearing under the following headings:-

21. River Dargle near Bray Bridge prior to the storm and the allegations of

22. Council (and adopted by Uniform) and by Coillte.

23. The first three categories of evidence were of considerable complexity and obviously required many days of evidence.

24. However these difficulties were minor by comparison with the problems associated with the evidence on causation.

25. The learned trial judge pointed out at p. 34:-

26. This work was carried out by a Dr Paul Samuels who specialised in fluvial systems and computational hydraulics, with the assistance of a Mr Dent, a hydrologist, in relation to the meteorological input. There were further surveys of the effects of the storm on the Dargle catchment carried out by a Mr McLoughlin whose observations were utilised by Dr Samuels.

27. As pointed out by Laffoy J., the duration of the oral testimony of Mr Dent and Dr Samuels was just short of 30 hours. The computer had produced a connectivity diagram of the flow of the river from Powerscourt Waterfall to the sea and about 500 megabytes of information which were stored on compact disk. The computer model clearly caused considerable difficulty for all parties and was stated to be somewhat less than conducive to the efficient use of Court time.

28. The Defendants severely criticised the calibration of the main model and many pages of the judgment go on to address issues of peak flow volumes and flood simulations. Experts called on behalf of the Defendants, Professor Conleth Cunnane and Dr Michael Bruen questioned the suitability of the software for the task for which it had been employed. The paucity of calibration data and the lack of independent verification of the model's performance, in their view, reduced one's confidence in the model.

29. Some 27 pages of the judgment are taken up with the complexities of the causation issue.

30. Only at p. 61 is the trial judge in a position to finally commence to consider the issues between the parties.

31. At p. 80, the learned judge expressed the view that the criticisms of the modelling exercise were well founded to such a degree that she was not satisfied that the results of the modelling exercise accurately reflected the actuality of the flood event and, therefore, the conclusions drawn on the results did not stand up.

32. At p. 81 she stated:-

33. The learned judge went on to state that in her view it had not been demonstrated that water flowing through the breach in the river wall was a material element in the flooding of the Plaintiff's premises. In short, the Plaintiff had not established that the drainage construction works, rather than natural processes, were a material element or a substantial factor in causing it.

34. She then went on to address the issue of causation in relation to the dam break. She concluded that the flooding of the Plaintiff's premises was not solely attributable to the waters from Paddock Pond. Further, it was not possible to identify a substantial or ascertainable portion of the damage which could be attributed solely to the effect of the presence of waters from Paddock Pond.

35. This summary of the judgment of Laffoy J. Hopefully conveys the scale and complexity of the case which the learned trial judge had to deal with. Needless to remark, it was a considerable technical and logistic challenge to the respective legal teams, not only during the course of the trial itself, but also in the years and months which preceded the commencement of the trial itself. The judgment is most helpful in indicating the amount of investigative and preparatory work which was necessarily involved.

36. It is also of some importance to bear in mind that the trial of the issue of damages was deferred at the outset of the trial, as was the issue of contribution as between the various Defendants, but obviously these issues also required to be addressed by the Defendants before the case came to Court.

37. Denis McCullough S.C., who with Mr. Liam McKechnie, SC and Junior Counsel appeared for the first named Defendants, wrote to his instructing Solicitor on the 7th of May, 1997 indicating that in his view the appropriate brief fee for each Senior Counsel retained for the first named Defendant would be £100,000 with refreshers of £3,000 each thereafter. Junior Counsel is, of course, entitled to two-thirds of the fee marked by Senior Counsel.

38. On receipt of this letter, Mr. Boylan referred it to his Legal Cost Accountant who advised that the suggested brief fee was too high. Counsel subsequently agreed to reduce the brief fee to £52,500 for each Senior Counsel with refreshers of 3,000 guineas each.

39. On taxation, the sum of £18,000 was allowed to each of the two Senior Counsel together with refresher fees as marked for the 27 days of the hearing.

40. In relation to the fourth named Defendant, this Defendant was represented by Mr. Patrick Keane S.C., who appeared with Junior Counsel, but without a second Senior Counsel. He marked £63,000 by way of brief fee with daily refreshers of £3,000. On taxation his brief fee was reduced to £25,000 and the refresher fees as marked were allowed.

41. The first and fourth named Defendants object to these reductions, whereas the Plaintiff objects to the level at which refresher fees were allowed for Counsel retained by the first named and fourth named Defendants.

42. In his letter dated 7th May, 1997, Mr. McCullough identified what he saw as the unusual features of the case. He stated:-

43. It is pertinent to point out that while this was never formally agreed to be a test case, in reality, as events have shown, it served as such.

44. Insofar as the brief fees marked by Counsel for the first and fourth named Defendants are concerned, Mr. Collins has argued that the Taxing Master in reducing them appears to have abandoned the standard of the reasonably prudent and reasonably careful Solicitor in favour of a standard based exclusively on what was considered reasonable by the Plaintiff's Solicitors in respect of the fees of Counsel for the Plaintiff. Nor, it is argued, did he consider the fees on their own merits as required by S.27 of the 1995 Act.

45. Each of the two Senior Counsel acting for the Plaintiff marked a briefing fee of £17,500 with daily refreshers of £2,000. The Taxing Master held that it was “incumbent upon him” to have regard to what the Plaintiff's Counsel marked for the purpose of applying the provisions of the 1995 Act. In doing so, he suggests the Taxing Master erred in principle because Section 27 of the 1995 Act does not mandate the Taxing Master to adopt the standard of the Solicitor for the paying Party as the touchstone for Counsel's fees.

46. It was not in dispute before me that Mr. Comyn S.C. and Mr. McGovern S.C., who appeared on behalf of the Plaintiff's insurers, the effective Plaintiffs in the proceedings, were regularly briefed by them. However, they marked their fees during the currency of the hearing. The Plaintiff argues accordingly that the unsuccessful outcome to the case was never a factor in fee marking and therefore there can be no question of "sorry fees" having been marked by Superquinn Counsel as suggested by Mr. Collins for the Defendants. Such might be the position where Counsel marked a reduced fee having regard to the unsuccessful outcome of proceedings. These were, the Plaintiff submits, fair and reasonable fees having regard to what the case involved.

47. Further, to the extent that this was a test case, it is argued on behalf of the Plaintiff that the fees marked by Mr. Comyn and Mr. McGovern reflect that consideration.

48. Mr. McDonald on behalf of the Plaintiff argues that even in substantive cases refresher fees do not usually exceed £2,000. Only in exceptional cases have refresher fees of 3,000 guineas been allowed. One such case was Commissioners of Irish Life -v- Maxwell Weldon & Darley (1997) 3 I.R. 475 where such a fee was allowed but there was only one Counsel retained in the case by the Commissioners and he had to attend for very long days before the Planning Appeals Inquiry which was held 150 miles from his Chambers. Equally in Bloomer -v- The Law Society Geoghegan J. upheld refresher fees of 3,000 guineas, but in that case also, one Senior Counsel only was retained. Similarly, in Gaspari -v- Iarnroid Eireann , one Senior Counsel alone was retained. Of the cases cited, it was only in the Superwood case , unique for its complexity and duration, that such fees were allowed for two Senior Counsel. Other comparator cases show figures less than £2,000 for refreshers.

49. The instruction fee claimed on behalf of the Solicitors acting for Bray UDC was £575,000 which on taxation was reduced to £105,000. The instruction fee claimed on behalf of the Solicitors acting for Coillte was initially £630,000 but at the hearing of the initial taxation the sum claimed was effectively reduced to £575,000. In the case of the fourth named Defendant also, the amount allowed was £105,000.

50. On behalf of the first and fourth named Defendant, it is submitted these reductions were wholly unjust in that the Taxing Master failed to appreciate the complexity of the issues, particularly the evidential issues, which the Solicitors were required to deal with in the proceedings. It is submitted further that the Unreported Judgment of Laffoy J. makes it clear that the proceedings required the most careful preparation of intricate factual and expert evidence and the demands made of the Solicitors continued throughout the lengthy hearing. The case made by Superquinn against the respective Appellants was quite distinct and, accordingly, each of the Defendants had to bear the full burden of their own defence.

51. The Taxing Master, it is submitted, failed to take into account that the Defendants’ Solicitors had “lived with the case” for a period of approximately ten years. He attached too much significance to the fact that the majority of the witnesses was called by Superquinn. In the instant case, it is apparent from the judgment of Laffoy J. that the evidence of the expert witnesses called by the Defendants was of cardinal importance in the proceedings and their evidence was in fact preferred to the expert witness called by Superquinn.

52. It is further submitted that the Taxing Master failed to attach any or any proper weight to the test case nature of the proceedings. While in his initial ruling he stated he would place credence on the case of Gaspari, it is clear that his allowances in respect of the Solicitors’ instruction fees fail to reflect the fact that in substance the proceedings involved and resolved claims amounting to £10,000,000 and not merely the claim of Superquinn which was, of course, a substantial action in its own right. It is further submitted that the Taxing Master was perverse in holding that “the responsibility factor in relation to the Defendants’ Solicitors was not of an enormous dimension”.

53. It was submitted that the Taxing Master attached excessive weight to the fees paid by Superquinn to its own Solicitor. While it is accepted that these fees could properly be considered by the Taxing Master, they were simply one factor to be considered by him and the Taxing Master erred insofar as he appeared to have regard to the amount paid to Superquinn’s Solicitors as imposing an a priori ceiling on the amount which could properly be allowed to the Solicitors for the Appellants.

54. Mr. Collins for the Defendants argues that the particular circumstance of the instant case are all important. In the first place, the traditional role of Plaintiff and Defendant were, in a critical respect, reversed. Superquinn, the Plaintiff, was insured and the Defendants were not. It follows, therefore, that insofar as the “practice” referred to in Clarke -v- Hartley had any application, it should have meant that the Defendants’ instruction fees ought to have been allowed at a third more than the instruction fee paid to the Plaintiff.

55. It was further submitted that it would be quite improper if the Plaintiff’s Solicitors could effectively determine the level of remuneration to be paid to the Solicitors on the other side and that there is no principle or rule of law to that effect.

56. Finally, it is submitted that the Taxing Master failed to examine the Appellants case on its merits. His reasoning in relation to the Solicitors instruction fee can be briefly expressed: as a matter of principle, cases are more onerous on plaintiffs than on defendants, and, therefore, the Defendants’ Solicitors must recover less than the amount paid to the Solicitors for the Plaintiff.

57. For the Plaintiff, it was submitted that the Court should be very slow to intervene in a case under the 1995 Act. Even under the old regime, a certain degree of judicial restraint came into play, as was acknowledged by Laffoy J in Goodman (P. 17 of the judgment). Far greater requirements of restraint must be shown by the Court in a case under the 1995 Act.

58. The Plaintiff says further that there is no basis to suggest that the Taxing Master applied an a priori rule. He came to the conclusion, as he was entitled to do, that the greater burden in the case lay on the Plaintiff. He did not apply the "rule" in Clarke -v- Hartley , because had he done so the instructions fee permitted to the Solicitors for the first and fourth named Defendants would have been of the order of £73,000 (namely, two-thirds of the £110,000 marked by the Plaintiff's Solicitors). Furthermore, insofar as Counsel’s fees are concerned, the Taxing Master allowed a brief fee to Counsel in excess of that marked by Counsel for the Plaintiff.

59. In the instant case it is stated that the Plaintiff had to sustain claims against three separate Defendants. There were four separate causes of action which the Plaintiff had to prove, namely:-

60. Construction.

61. It is claimed on behalf of the Plaintiff that the first and fourth named Defendants, by contrast, had a much narrower field to deal with.

62. Strictly speaking, this was not a test case. If it was, it was open to the Solicitors for the Defendants to attend at the taxation and give evidence as to the importance of the case. However, it is conceded that the decision was likely to influence the manner in which other claims against the Defendants were subsequently dealt with.

63. It is argued to be unjust that the party who had undertaken a greater share of the work in the case - the Plaintiff - would end up having to pay the opposing legal team, on whom a lesser burden lay, fees totally out of line with those marked by its own Solicitors and Counsel on a commercial basis. There is absolutely no evidence to support the suggestion that the fees marked were “sorry” fees. The fees were charged in circumstances where such advisors were acting on behalf of a fully solvent insurance company in a commercial recovery action. Moreover, the fees in question were charged long prior to the delivery of judgment in the case.

64. It is accepted by the Plaintiff that on the personal injury side, legal advisors who habitually act on behalf of insurers will in such cases sometimes agree to accept lower fees than those marked by legal advisors acting for other clients. However, there is no evidence to suggest that such a practice exists in commercial litigation and thus there is no basis to suggest the Plaintiff’s legal advisors in this case marked reduced fees.

65. It is argued that the various comparator cases cited to the Taxing Master provide no assistance to the Defendants who argue them. Some involved Solicitor and Client taxation. The nature of the cases was also very different. Thus there is no evidence which would entitle the Court to intervene.

66. In the instant case the Solicitors for the Defendants had sought to argue that the instructions fee claimed could be broken down into “three parts”:-

67. However, it is submitted that having regard to the decision of Barron J in Best -v- Wellcome , (1996) 3 IR 378, that this approach is manifestly wrong. Barron J made clear (at pp. 388-389) that there is no justification for adding to the basic fee for various elements in the case. That case made clear that there were effectively only “three criteria” to be considered in deciding the level of instructions fee:-

68. At the outset the Court must consider the extent to which the provisions of the Court and Court Officers Act, 1995 have altered or amended the law as it was up to that point.

69. The legal position prior to the introduction of that Act was comprehensively reviewed by Laffoy J. in her Judgment in The Minister for Finance -v- Lawrence Goodman, Goodman International and Subsidiary Companies (Unreported) 8th October, 1999. That survey and the Judges conclusions with which I agree extend over some ten pages (commencing at p. 9) under that section of the Judgment which is entitled "Proper Scope/Standard of Review".

70. The present review must be carried out subject to what are described as "additional powers of Taxing Master of High Court" contained in part VI of the 1995 Act and in particular to the following provisions of Section 27:-

71. Some interesting insights into the Taxing Masters own understanding of Section 27 can be gleaned from certain observations made by him in the Goodman taxation to which Ms. Justice Laffoy referred at pp. 21-23 of her Judgment as follows..-

72. On any fair reading of Section 27, it seems to me that the latter view of the Taxing Master must be correct. A similar view was taken by Laffoy J. when she stated at

73. Where such powers are expressly conferred on the Taxing Master by statute, it must follow that the Taxing Master also has a duty to examine the nature and extent of work in any particular case and make his own fair and reasonable assessment on the merits accordingly. This must mean that some supposed "no go areas", particularly with regard to Counsels' fees, no longer exist and that some principles, expressed in cases such as Dunne -v- O'Neill [1974] IR 180 and Kelly -v- Breen [1978] ILRM 378 in relation to Counsels' fees are no longer determinative, but merely factors to be taken into account. Of course, the Taxing Master may still follow and adopt these well established principles and criteria when he deems it appropriate, but the Act has clearly conferred on the Taxing Master, who has special expertise in this area, all the attributes of a specialist tribunal.

74. If that be the new and wider function of the Taxing Master the question then arises as to whether the Court on review has any different function from that which obtained previously.

75. Under the old system, the Court had a wide ranging remit and, in the context of a review under O.99, R.28, could "make such order as may seem just".

76. Now under S.27(3) of the 1995 Act it can intervene "provided only that the High Court is satisfied that the Taxing Master... has erred as to the amount of the allowance or disallowance so that the decision of the Taxing Master... is unjust".

77. This wording seems to represent a significant shift of emphasis and to impose a heavier burden on any Party seeking to challenge a Ruling of the Taxing Master. This interpretation is acknowledged at p. 25 of the Goodman Judgment and can scarcely be a matter of doubt. It would suggest (when taken in conjunction with S.27(1) and (2)), that the Court should exercise a considerable degree of judicial restraint in the context of a review, although it must clearly intervene if failure to do so would result in an injustice.

78. Section 27(3) has been considered by the High Court in three cases. In Smyth -v- Tunney (1999) 1 ILRM 211 McCracken J., having quoted subsection (3) stated as follows at page 213..-

79. McGuinness J. agreed with it in Bula Limited & Ors -v- Flynn (Unreported judgment delivered the 7th day of March, 2000).

80. However, a different view, is to be gathered from the decision in Bloomer & Ors -v- Incorporated Law Society of Ireland (Unreported judgment of Geoghegan J. delivered the 3rd day of December, 1999) where he stated at p. 5:-

81. He then stated:-

82. This view makes obvious sense but it is frankly difficult to see how it can be reconciled with that of McCracken J. in Smyth -v- Tunney . In discharging its function the High Court inexorably must, if it can, form a view itself of the particular item of costs or the amount it would have awarded in any given situation. Otherwise, there is no basis upon which any conclusion as to "injustice" can exist in the absence of some mistake of principle. I would therefore regard the reasoning of Geoghegan J as more correct.

83. There may of course be instances where the Court does not feel equipped to offer it's own view, particularly in relation to Solicitors instruction fees, which have always been regarded as an area of considerable difficulty for Judges. This may leave the Court with no option but to remit the matter back to the Taxing Master where some mistaken principle has been applied or where there is no sufficient material to enable the court arrive at a figure which is proper in the circumstances.

84. When does an error as to amount become "unjust"?

85. It seems to me that, in exercising its powers of review under Section 27, the High Court should adopt a similar role and standard to that traditionally and habitually taken by the Supreme Court in reviewing awards of damages, that is to say that it should not intervene to alter a finding of amount made by the Taxing Master unless an error of the order of 25% or more has been established in relation to an item under challenge.

86. Having regard to the legal considerations expressed above, the first issue the Court must address is whether in the course of its review in this case, it is in a position to itself determine appropriate allowances, particularly in regard to the Solicitors' instruction fee, which, unlike Counsels' fees, is an area into which judges stray as rarely as possible.

87. Parke J's dicta in Irish Trust Bank Limited -v- Central Bank of Ireland

88. In the instant case, the Court is in the fortunate position that the case in question was fully fought out to a conclusion and that, in addition to the bills of costs themselves, the Court in addition has had sight of the unreported version of Laffoy J's judgment, from which it has been put in the position of being able to understand the complex issues which were involved in the case and to make its own informed estimates in relation to different areas of costs.

89. It is now necessary to examine how the Taxing Master approached his assessment of both (a) the instructions fee and (b) Counsels' fees.

90. In his written ruling on the costs of the first and fourth named Defendants on the 23rd July, 1999, the Taxing Master ruled in relation to the Solicitors' instruction fee at pp. 10 - 11 of his ruling where he stated:-

91. At several points in the course of his ruling, the Taxing Master stated that the responsibility factor in relation to the Defendants' Solicitors was not of an enormous dimension and, on the other hand, stressed that the Plaintiff's case was a lot more onerous than that faced by the Defendants.

92. In his ex tempore ruling delivered in February, 1999, the Taxing Master had stressed that in his view there was an essential difference between the Plaintiff's and the Defendants' costs and endorsed the view expressed in Clarke -v- Hartley , in which at p. 2 of his judgment Barr J. stated:-

93. The ex tempore ruling also purported to take into account that there was a "test case dimension" to the instant case and purported to make due allowance in the calculation on that account, as was indicated should be done in Gaspari -v- Iarnrod Eireann [1997] 1 ILRM 207.

94. Reverting to the Ruling, the Taxing Master stated as follows at p. 8:-

95. In relation to Counsel's fees, the Taxing Master purported to apply the provisions of the 1995 Act to that issue when he stated as follows at p. 21:-

96. He also rejected the cross objections brought on behalf of the Plaintiff in relation to the refreshers and in particular whether or not same should have been allowed in Punts or in guineas. He does not appear to have addressed the quantum of refreshers in any specific way at all.

97. Also, in relation to Counsels' fees, he adverted to the principles outlined by Hamilton J. in Kelly -v- Breen [1978] ILRM 63 and stated at p. 17:-

98. It seems to me firstly, in relation to the instructions fee that there was no basis for the finding of the Taxing Master that the responsibility factor in relation to the Defendants' Solicitors was not of an enormous dimension. In fact, I believe that was very much the case having regard to the fact that Bray UDC was uninsured and, had the case had an unsuccessful outcome, Bray UDC would have been inundated with further claims costing many millions of pounds. This was not a consideration which affected the insurers of Superquinn either at all or to anything like the same degree.

99. Accordingly, this was certainly not a case for the application of any supposed principle, if it be such, as outlined in Clarke -v- Hartley , against the Defendants. In fact the roles were reversed in the instant case. In the course of submissions, it was further clarified that the Plaintiff had available the services of a firm of loss adjusters ab initio and, of course, enjoyed all the very considerable resources available to a substantial insurer. I do not regard the number of witnesses called on one side or the other as being in any way indicative of where the greater burden lay. A Plaintiff might call 100 witnesses and yet a Defendant could successfully apply for a non suit at the end of the Plaintiff's case.

100. Equally, the number of folios contained in a brief is a very poor marker for the complexities of any particular case. There are instances where extremely bulky briefs are of far less assistance to Counsel than a well edited shorter brief.

101. Insofar as the instruction fee in this case is concerned, I do not find the comparator cases cited of any great assistance in relation to the instruction fee because the cases cited to the Taxing Master and to 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 the Act of 1995 so requires.

102. It is for that reason that I have set out in some considerable length details of the judgment of the learned trial judge. I believe a clear picture of work necessarily done in preparation does emerge from this exercise. I believe it establishes that the Solicitors for the Defendants did "live with this case" for many years. It is not necessary for them to show that they devoted ten "uninterrupted years" to the case. It is also somewhat unsatisfactory to read that the Taxing Master, even had he held that a ten year period had been involved, could not have assessed the fee by reference to that period as “the nature of the case did not lend itself to such a calculation”. The Ruling is unfortunately lacking in any specifics as to how the instruction fee was calculated.

103. It seems to me that in the aftermath of the 1995 Act, 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 Solicitor's instruction 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.

104. I am also satisfied that from an early stage, the Taxing Master decided to apply an a priori method of calculation to his consideration of costs, and effectively tied the Defendants in to the fees marked by the Plaintiff's Solicitor and Counsel. While the fee of an opponent is of course a relevant factor, this does not exonerate the Taxing Master from conducting a root and branch examination of the Defendant's bill on its own merits.

105. An exhibit made available to the Court is a letter which Mr Boylan wrote to his legal cost accountant on the 21st April, 1997 which I have annexed to this judgment by way of appendix. It sets out the onerous task that fell upon the Defendant's Solicitors over a long period of time, both with regard to fact finding and case preparation. This was not a purely advocacy driven case, but rather one in which investigation and preparation were at least the equal if not dominant considerations. Furthermore, it appears that Counsel advised additional proofs with which the Solicitors had to comply during the course of the trial itself. Both on grounds of principle and on grounds of amount, I feel it would be unjust to the Defendants' Solicitors to allow the present sums allowed by way of instruction fee to stand. I would substitute the sum of £150,000 in each case. I will not in any way subdivide this sum which is intended to cover the “three parts” and “three criteria” identified at p. 17 of this judgment.

106. In relation to Counsels' fees, I agree with Mr McDonald that there is no basis or evidence to suggest that Counsel retained by the Plaintiff marked fees on anything other than a commercial basis. These fees were also marked well in advance of the resolution of the case, at a time when Counsel might reasonably have believed they were "winner's fees" rather than "sorry fees".

107. Be that as it may, that fact is no more than one element to be placed in the balance.

108. The comparator cases are of considerably more assistance in relation to Counsels' fees. These authorities convince me that a reasonable and fair brief fee for each of two Senior Counsel appearing in a case of this order would be £25,000, in other words, I will increase the brief fees by £7,000 for each Senior Counsel. This is in recognition of the complexity and degree of preparation which the case entailed and its “test case” character which I feel was insufficiently recognised by the Taxing Master.

109. In relation to the fourth named Defendant, who appeared as a single Senior, I will increase that brief to £35,000 for the same reasons.

110. However, in relation to refresher fees, I accept fully the submissions made by Mr McDonald. It seems to me that refresher fees of 3,000 guineas could only be justified and allowed in quite extraordinary and exceptional circumstances where two Senior Counsel are retained. This case, while difficult and arduous, falls well short of that threshold.

111. I have only been asked by Plaintiff's Counsel to reduce the refresher fees to £2,000 and I will so direct. As the role of Counsel for the fourth named Defendant was rendered considerably less difficult by virtue of the fact that his cross examination of expert witnesses followed that of Counsel for the first Defendant, I will reduce refresher fees for the fourth named Defendant to the sum of £2,000. I have not been asked to reduce refresher fees below this figure, or to consider whether refresher fees should be subject to some reduction if a case goes on beyond a certain time. The broken nature of this trial would suggest there could be no basis for invoking the duration of the case as any sort of justification for maintaining refresher fees at a high level, if indeed such an argument is sustainable in the first place.