1. This
matter came before the Court by way of Notice of Motion pursuant to O. 99, Rule
38(3) of the Rules of the Superior Courts 1986 to review the taxation of a Bill
of Costs presented by the Applicants pursuant to an award of costs granted at
the conclusion of the above entitled Tribunal on the 29th day of July, 1994.
3. At
the hearing the Applicants elected not to pursue (c) and the Respondent
conceded liability to pay the fees as taxed attributable to Mr. O’Malley.
4. The
hearings held by the Tribunal lasted 226 days of which the Applicants’
Solicitor, Mr. Donal Spring of Spring Murray & Co was in attendance for 190
days (save for a short holiday period, when his partner, Mr. Murray, was in
attendance). There is neither suggestion or evidence by anyone at any time that
there was any element of unnecessary attendance or generation of irrelevant
documentation or paperwork by Mr. Spring. The costs incurred by the Applicants
at and in connection with their representation at the Tribunal of Inquiry were
provided for and are recorded in its report as cited by the Taxing Master in
his original ruling dated 31st July, 1998 (Vol. 1, p. 19-72) as a result of the
hearing before him on 30th April, 1998, of which there is a transcript (Vol.
2A, p. 1-115). Objections were carried in, and the hearing of those objections
of which there is a transcript (Vol. 2A, p. 116-210) and the Taxing Master
delivered his ruling on the objections on 29th May, 1999 (Vol. 1, p. 73-122).
5. The
instructions fee claimed was £785,000, which on the original ruling was
reduced to £320,000 (made up as to a daily rate of £1,000 for 190
days, ie £190,000 plus a figure of £130,000 for the intangibles).
This figure was altered on the ruling of 29th May, 1999 to £485,000 (made
up as to a daily rate of £1,500 for 190 days, ie, £285,000 plus a
figure for the intangibles of £200,000). The figure claimed and a brief
fee by Senior Counsel was £152,250 which was reduced to £52,500 on
the original ruling, this figure remained unaltered after the hearing of the
objections.
7. Having
started the ball rolling, so to speak, the Tribunal were furnished with a Book
1 (dated 20th June, 1991) prepared with the assistance of a Solicitor and
Counsel, for which Mr. Spring took responsibility - being a summary of
allegations made or referred to in Dail Eireann and an I.T.V. programme
entitled “World in Action”. Likewise, a second book was prepared
referable to the documents and persons relevant to allegations made in Dail
Eireann and on I.T.V. (Book 2). The Tribunal it seems were pleased to have Mr.
Spring’s assistance in this regard as Mr. Spring had ready access to the
Dail Library where the necessary research material was available. In the
events the Tribunal formulated its structure for enquiry (Book 3) on the
information it had received - and with some remarkable elements of coincidence,
did so under headings and topics identified by Mr. Spring.
8. These
in broad outline set out the submissions of the parties, which were founded on
some written submissions (in the case of the Applicant in Vol. 1, p. 2-14, in
the case of the Respondent in a separate booklet, marked “D”) and
oral submissions to the Court. It was common case that the applicable statute
law and Section 27 and the applicable rule of the Rules of the Superior Court
1986 was O. 99, r. 37(22) and in particular those elements upon which the
discretion of the Taxing Master should be exercised and set out in subparagraph
(ii) thereof.
9. At
the outset Mr. Meenan stated that he was not advancing any case that the role
of Mr. Spring or Mr. Desmond equated or was comparable to that of the main
parties, ie, the Minister for Agriculture and the Goodman Group of Companies.
However, stress was laid on the importance of the role of Messrs. Spring &
Desmond at the Tribunal, for though not parties in the forefront of the
controversy, their reputations were at stake, and they were extremely concerned
that such allegations or matters of concern that they had been directly or
indirectly responsible for bringing into the public domain would be sustained.
There was an appreciation that this would be a very difficult task in the light
of their decision to rely on Parliamentary Privilege and their anxiety and
decision not to disclose their sources of information. Notwithstanding the
fact that the evidence of Messrs. Spring & Desmond was modest in time terms
in comparison to other parties and witnesses yet their presence and attendance
through their Solicitor in respect of a hearing of 226 days in comparison with
other politicians is as follows:-
13. When
the Solicitor undertook to represent Messrs. Spring & Desmond he did so in
uncertain circumstances but there was a commitment sought by his client, (Vol.
2A, p. 31, Q 11) that once given, became and remained time consuming (Vol. 2A,
p. 35, Q. 18) and virtually “locked in” the Solicitor to the
Tribunal to the exclusion of his practice at his office (Vol. 2A, p. 38 Q. from
Taxing Master). There was no matter of choice as to when the Solicitor would
attend the Tribunal, once the commitment was given (Vol. 2A, p. 45, Q. 56)
(Vol. 2A, p. 37, Q. 29, 30).
14. The
Taxing Master is correct in his original Ruling (Vol. 1, p. 40, internal, p.
22) in noting that no wrong-doings were alleged against Messrs. Spring &
Desmond, no experts were instructed and most of the
documentation
briefed to Counsel was provided by the Tribunal (my emphasis). While this may
very well reduce the amount of paperwork considerably, it seems clear to me
that the constant daily consultations with the client after normal working
hours for a Solicitor (eg Vol. 2A, p. 32, Q. 13). The manner of the briefing
of Counsel both initially and throughout the hearing and essentially, but not
exclusively, orally - initially the fact that the hearings began very soon
after the setting up of the Tribunal and its format and length were
unpredictable necessitated this course. Thereafter the briefing of Counsel was
conducted on an ongoing basis as topics and documentation emerged at and from
the Tribunal. This fact places a very heavy burden on Solicitor and Counsel,
the fact that the pressure of time and volume of paper were dealt with as they
were in this case worked (Vol. 2A, p. 34, Q. Line 12). The amount of paperwork
was reduced - but not the amount of work. Altogether from time constraints and
volume of documentation, there was the sensitivity of the claims of
Parliamentary Privilege and the protection of sources and perhaps the spectre
of later Discovery. However, the fact that Messrs. Spring & Desmond were
not alleged of wrongdoing does not diminish the extra sensitivity of their
public reputations, not only for probity, but for responsibility and judgment,
that serious economic, financial or social damage could flow from the
allegations they put before the Tribunal.... were factors to be considered if
not nicely balanced against the engagement or consideration of preparing
experts reports or consulting experts or preparing or settling proofs of
evidence or giving guidance thereon.
15. In
marked contrast to the Taxing Master’s remark “that no wrongdoings
were alleged against Messrs. Spring & Desmond” are his remarks in his
Ruling on the MacGiolla and Rabbitte taxation of 23rd February, 1996 (Book 6,
p. 18/31).
16. The
Tribunal historically speaking was without parallel in the history of the State
when it was set up in 1991, the range of concerns upon which Counsel required
to be briefed and instructed upon can be briefly (and roughly) summarised under
the following headings:-
17. These
were the matters that the Taxing Master was concerned about when he (under
Section 27(1)) set about the examination of the nature and extent of any work
done by the Solicitor. In exercising the discretion under Section 27(2) to be
fair and reasonable in the circumstances of the case, the Taxing Master shall
have regard to all relevant circumstances (as provided for in O. 99, Rule
27(22)(ii) of the Rules, and in particular to:-
18. Evidence
in this regard was given by Mr. Donal Spring (eg. Vol. 2A, p. 35 to p. 37, p.
27, p. 49-50, Q. 79). I am satisfied that the matters which had to be
addressed by Mr. Donal Spring were complex, difficult and novel - the
transcripts testify to this and the Taxing Master with great skill records the
complexities, difficulties and novelty. However, both as to the daily rate and
the intangibles the Taxing Master - in his original Ruling (Vol. 1, p. 42
(internal p. 24)):-
19. The
Taxing Master clearly had a fine grasp of the scale and magnitude of the task
involved. He expressed himself (Book 6, p. 9/31) in this way:-
20. That
Mr. Donal Spring had the requisite skill for the difficult task is not in
dispute or the very onerous responsibility he undertook. Very few of the
participants had specialised knowledge of the Beef Processing Industry. The
Taxing Master in his several rulings refers to the process of learning those
engaged at the Tribunal underwent - there were some others (ie those persons
involved in the Beef Processing Industry) who had a specialised knowledge, not
in the sense contemplated by the Rules who, like Mr Spring, were on a learning
curve. The problems encountered under this heading centres on:-
21. The
Taxing Master having quoted from the Bill of Costs (Vol. 2B, p. 417, internal
p. 127 to 128) proceeds in his original Ruling (Vol. 1, p. 48, internal p. 30)
thus:-
22. This
excerpt was the subject of some newspaper reportage which it was stated to have
caused damage and embarrassment to Mr. Spring as a Solicitor. Furthermore, it
belittled and demeaned his professionalism and he found it offensive. The
Taxing Master accepted that:-
24. In
no instance are “the other” with whom the comparisons is made
identified: the comparisons make sense only if “the other” is
either the Minister for Agriculture, the Goodman Group of Companies or the
Tribunal itself against which it is clear Mr. Spring conceded and admitted his
position is and was not comparable. That a comparison may be fair and
meaningful one must compare like with like, a concept clearly understood by the
Taxing Master (Book 6, p. 15/31): again the importance of identifying
comparables to reach a valid conclusion is likewise understood (Book 7, p. 16).
25. As
with the expression tête-à-tête, describing Mr.
Spring’s work as lilliputian was given newspaper publicity and he
considered it was an unfair and gratuitously offensive criticism. This matter
was “carried in” in the objections and the Taxing Master deals with
it in his Ruling of 29th May, 1999 (Vol. 1, p. 97, et seq). Mr. Meenan without
using the expression characterised the response as tendentious, and the
situation he considered to be exacerbated as the Taxing Master expressed
himself ultimately in this fashion (Vol. 1, p. 101, internal p. 29):-
26. Again,
“others” are identified. I refrain from a nice consideration of
grammar and syntax. Infelicity of diction should not of itself vitiate a
decision, it may or may not be the tone and tenor of the language used betoken
an underlying disposition - which may be protested or denied - indicative of
apparent bias if not real bias. The manner in which a matter is expressed can,
depending on circumstances, be of importance.
27. The
expression tête-à-tête has as is clear from The Shorter
Oxford Dictionary (3rd Ed: Onions) the meaning recorded by the Taxing Master,
but I venture to think it would be colloquially understood as casual or
intimate chit chat. I prefer the word “informal” to describe the
consultations as used by Mr. Fitzpatrick (the Respondent’s Legal Cost
Accountant at the taxation) (Vol. 2A, p. 90, internal p. 90 of transcript). I
believe it to be the correct and accurate description of the consultations.
28. “Lilliputian”
is a relative adjective - but in the absence of an identified benchmark or
standard or person or work, it could be taken as a derogatory expression, as it
was in the instant case, I believe, with some justification by the Applicant's
Solicitor. The sense of having added insult to injury by describing Mr. Donal
Spring’s work as shallow (albeit “relatively shallow”) was
considered by Mr. Meenan adequate reason to advance the point that it was part
of the complaint going to the overall justice of the case of the Applicant, and
that the Taxing Master had erred as to the amount allowed so that the decision
was unjust. The question of the tone of a ruling and the language in which is
expressed can be a basis upon which the High Court on review can come to a view
that a claim has not been fairly disposed of and that an allowance or
disallowance was erroneous and unjust (
De
Rossa -v- Independent Newspapers Plc
- unreported judgment of Geoghegan J, 7th March, 2000). While the Taxing
Master may not have intended to be malicious (Vol. 1, p. 99, internal p. 27 of
Ruling dated 29th May, 1999). I believe that the tone and tenor of the ruling
is scornful in its depiction of Mr. Spring’s work, work practices and
efforts, and is unjust.
29. I
have no doubt that the most difficult task facing the Taxing Master was the
scarcity of written records of the work of the Solicitor - it is a topic upon
which there is considerable stress laid in opposing the bill and is extensively
and repeatedly returned to in the rulings.
30. In
terms of the number of documents generated at the Tribunal it would not be an
understatement to describe the documents generated by the Solicitor as almost
insignificant. The same could not be said of their importance. Books 1 and 2
- in particular Book 1, while it did not set the agenda for the Tribunal, which
set its own agenda, very clearly was extremely influential in identifying and
focusing on the range of inquiry undertaken by the Tribunal. As the most
public representative who brought the defects in the Beef Proceeding Industry
to the fore, it was imperative that the content and accuracy of the allegations
be as near human perfection as possible given his position in public life. I
do not underestimate the importance both for the client and the Tribunal that
those Books and the Statements were of a calibre that would withstand the most
sustained and vigorous scrutiny. So much for documents prepared “for
public consumption”. The number of documents prepared “for private
use”, eg synopses of statements of experts, précis of rulings or
elements in transcripts may not have been hugely extensive but in the events
was clearly adequate for the clients’ purposes - the constant reportage
and consultations with the clients. The next category of documents are those
one might reasonably have supposed would be extensive, ie, attendance [on
clients, on counsel, in person or on the telephone], which are as recorded
“sparse”. Likewise the briefing of Counsel and advices on proofs
are for all practical purposes non-existent.
31. Mr.
Fitzgerald for the Minister argued that the system of taxation of costs cannot
work without an adequacy of paper records, they are an important signpost as to
the work undertaken by a solicitor. I do not accept that the system cannot
work - but I fully accept the Taxing Master’s view that “the
absence of attendance notes presented a very real problem in assessing the
instruction fee”. The difficulty that arose, is in my opinion, largely
brought about by the modus operandi chosen by Mr. Spring; but I believe that
his decision - despite the problems it has caused for himself and others was in
understandable and reasonable in the particular circumstances in which he
worked. I note:-
32. Whatever
deficiencies in documentary records exists - and it does, is in the very
peculiar circumstances of this case understandable. On the other main
omissions in the category of documents referred to viz (i) written brief to
Counsel and (ii) advices on proofs; I have noted earlier in this judgment that
the Ministerial Order (on foot of the Resolution of the Dail) is dated 31st
May, 1999 and that Book 1 prepared with the assistance of Solicitor and Counsel
is dated 20th June, 1991 and the first preliminary setting/hearing of the
Tribunal was 21st June, 1991. In short, this was a form of instant briefing
simultaneous with engagement. The absence of a written documented brief
containing a statement of the case for Counsel is an absence of a customary
element of “work” but its absence in the instant case is
understandable and excusable, in part, given the initial time constraints.
Given the role of Mr. Spring at the Tribunal - with the sole exception of his
proof of evidence, there was no necessity for any Advice on Proofs.
33. While
I have dealt only specifically with subparagraphs (a), (b) and (c) of O. 99, R.
37(22)(ii), I am mindful of the various other headings under which discretion
is to be guided and to Counsel’s submissions on
Best
-v- Wellcome Foundation Ltd. (No 3), [
1996]
3 IR.. 378 and the judgment of Baron J at p. 387.
34. Notwithstanding
the unique expertise and great skill and industry shown by the Taxing Master in
his Rulings, I am satisfied that there is one major underlying flaw or error in
his decision. In his first Ruling (Vol. 1, p. 51, internal, p. 33):-
35. I
do not say the Taxing Master ought not to have had kept himself fully informed
on other Bills of Costs presented to him for ruling, but I am satisfied the
comparison he makes is not to compare like with like. Goodman’s position
both as to the nature and extent of their involvement was both different in
character and scale at least. Furthermore, Mr. Spring concedes he is not to be
compared to Goodman. This comparison is effectively carried into the Taxing
Master’s second Ruling (Vol. 1, p. 93-95). In another respect, Mr. Donal
Spring’s position differed from that of other Solicitors at the Tribunal,
whose note taking and keeping of records might well have (in part at least)
been motivated by professional negligence indemnity insurance - which was of no
concern to him (Vol. 2B, p. 220, p. 26). I note also that on the hearing of
Objections, Mr. Donal Spring indicated that certain prepared documents were not
submitted (Vol. 2B, p. 250), the basis for this attitude was protection of
sources.
36. I
accept that Mr. Donal Spring did not have to exercise the difficulties in
taking proofs of evidence from intended witnesses (save his two nominated
clients) and generally organising the case or ensuring the availability of
witnesses, (to adopt the words of Murphy J in
Smyth
-v- Tunney,
[1993] 1 IR 451). Ex facie this should mean a narrowing of the extent of the
Solicitors work which should be reflected in the instructions fee. However,
this is not an inevitable conclusion because the very fact that one has no
organising or controlling role and cannot decide on witnesses to be called can
- and I believe in the instant case did, add to the worry, anxiety and
responsibility of ensuring that the very matters, issues and allegations raised
were dealt with in the interests of and to the satisfaction of the clients. To
seek to influence and organise affairs without being in a position to conduct
and organise affairs calls for fine skill in courage, astuteness, persistence
and persuasion well above the conventional, the tactical skill to achieve this
objective shared by Solicitor and Counsel was not in the category of usual.
Therefore, the nature of the work can, and in the instance case I believe
counterbalanced the limitation of the extent of the work.
37. Mindful
of the several authorities relied upon by the parties (set out in the Appendix
to this judgment) which I have carefully read and considered) together with
DeRossa's case hereinbefore referred to and the unreported judgment of Kearns
J. of 5th May, 2000 in
Superquinn
Limited -v- Bray U.D.C. & Ors
and mindful of the self restraint to be observed by the court in not usurping
the role of the Taxing Master as expressed by McCracken J. in
Smyth
-v- Tunney
[1991] 1 ILRM 211 at 213 I believe the Taxing Master was correct in his
reference to
Treasury
Solicitor -v- Dinsmore Regester
[1978] 2 AKER 920; (also [1978] IWLR 446) (Vol. 1 p. 44/45) in citing Donaldson
J. in reference to an Instruction Fee, thus -
38. However,
in this case I believe the judgment as expressed in the Rulings is not balanced
and is in error and in the result unjust in the matter above adverted to and in
the application of Bloomer's case in which Geoghegan J indicates the proper
approach to be taken on a review by a court.
39. Mr
Donal Spring gave oral evidence before the Taxing Master on two occasions and
was subject to cross-examination. while he was properly queried about
attendances, documentation - and very specifically the lack of generated paper
records, his credit as a witness was not put in issue. Mr O'Neill, the Legal
Costs Accountant for the Applicant, submitted to the Taxing Master that Mr
Spring's "evidence was not rebutted" (Vol. 2B p. 264), but in the context of a
party and party taxation this point had less validity than in a Solicitor and
client taxation, a matter properly considered by the Taxing Master (Vol. 1 p.
92, interval p. 20 of Rulings on Objections).
40. In
the course of the Rulings on Objections the following extracts seem in point on
the question of the onus of proof:-
41. The
foregoing extracts appear in the Ruling just before the
explanation/justification/apologia for the use of the expressions
"tête-à-tête" and "lilliputian". Read through to its
conclusion under the topic "Instructions Fee" the Taxing Master refers to the
judgment of
Gannon
(unreported 2nd December, 1994) in
Heffernan
-v- Heffernan
and the achievement of a "determination of a judicial type by the Taxing Master".
42. While
the necessity of written records and their importance is repeatedly emphasised
in case law and referred to in the transcripts and Rulings in the taxation in
the instant case and their absence posed a real problem on taxation and the
consequences of its absence cannot be visited upon the Defendants/Respondent,
nevertheless its relative importance must be considered in each case. A
variety of circumstances can be envisaged e.g. the Solicitor who did the work
dies and there are none, some or voluminous records, the Solicitor is alive but
his records are not available for whatever reason e.g. fire, theft, lost,
minimal to sparse because of sensitivity, secrecy, indolence in maintenance.
Each case must be judged on its own facts. In the instant case the Solicitor
gave evidence, but not all his evidence was corroborated/supported/verified by
documentary evidence. His credit was not put in issue, the truth of his
evidence, however deficient in documentary back up, was not challenged. I can
find no expression of disbelief or doubt expressed by his questioners. If
there was an element of doubt or his responses lacked conviction I would have
thought in fairness, before a determination of a judicial type was made, that
such doubt or disbelief ought to have been articulated or put to Mr Spring so
that he could have an opportunity to respond thereto. If do not think it would
be necessary to offensively put to the witness that he was telling lies or
untruthful, indeed Mr Fitzpatrick's cross-examination is a model of fairness.
I cannot find in the transcripts of the taxation that this basic natural
justice was accorded to Mr Spring and do not at all suggest that this was
deliberate - indeed the oversight might have been attributable to the range of
detail at the taxation hearings, or perhaps the distraction (brought about by
the expressions "tête-à-tête" and "lilliputian" in the
original (Ruling) at the hearing of the Objections.
43. Much
agreement was advanced in Court that the Applicant was in no better or worse
position that the other politicians in terms of allegations, a concession made
by Mr Fitzpatrick (Vol. 2 B p. 276) and a like concession in relation to the
instruction fee, indeed to quote Mr Fitzpatrick on dealing with the
instructions fee -
44. Altogether
from the number of day's attendance at the Tribunal, Mr O'Malley, whose prime
concern was the Export Credit Insurance Scheme (Book 7 p.3) which I understand
to have been the most complex of the issues dealt with by the Tribunal and the
one to which most time was devoted to (Document "C"). I have no doubt that the
nearest comparable bill is that of Messrs MacGiolla and Rabbitte both as to
time and range of issues. Altogether from documentary records there are two
major points of difference:-
45. Mr
White, Solicitor for Messrs MacGiolla and Rabbitte was a sole practitioner and
was allowed £150,000 to reflect the complexity and difficulties of the
case and the protracted time involved and the difficulties faced. A like sum
was considered fair and reasonable by the Taxing Master for "the skill and
specialised knowledge the Solicitor to equip himself with to proceed properly
in the matter and particular regard was paid to the areas he had to cover"
(Book 6 p.17/31, 18/31)
46. Mr
Spring was 35 years of age in 1991 when he took the assignment in the early
days of a partnership. His evidence on the protracted time involved
(approximately 32% was greater than Mr White) was:-
47. Having
read in full the transcripts of evidence I am quite satisfied that Mr Spring's
necessity to equip himself ('the learning curve' referred to in the transcript)
to proceed properly in the matter and in particular having regard to the new
areas e.g. of law, commerce, regulations) he had to cover with the skill and
specialised knowledge was no less and may be greater than Mr White.
48. Mr
White was apparently allowed a further figure of £10,000 under the
intangible heading for dealing with Parliamentary Privilege (having originally
been allowed £40,000 (Book 6 p.19/31). In short the allowances made on
intangibles on review total £310,000 (which insofar as I have been
informed is subject to appeal on the element of Parliamentary Privilege as a
head of claim). A total of £200,000 was in contrast allowed to Mr. Spring.
49. Realising
that the exercise in assessment is not a pure arithmetical calculation, but one
of balanced judgment, I increase the instructions fee as allowed by the Taxing
Master not by the £110,000 difference in intangibles between the allowance
made to Mr. White at £310,000 and £200,000 as allowed to Mr. Spring
but by the sum of £90,000 to £575,000. In doing so I make no comment
on the correctness or otherwise in the £310,000 of £10,000 in respect
of Parliamentary Privilege. The difference between the £110,000
difference on the bills and the increased allowance to Mr. Spring of
£90,000 is to reflect (not by way of penalty) the consequences of the
inadequacy of documentary verification of the work done as sworn by Mr. Spring,
but to underline the importance of documentary records in the case of a party
and party taxation. The Taxing Master rightly stressed this matter in his
Ruling, but in my judgment did so disproportionately to the point of
exaggeration against Mr. Spring.
51. While
instructive, I think the information in Document “B” is of limited
assistance. Furthermore, the inherent nature of a brief fee is composite in
character, and while there is absolutely nothing wrong in Counsel - for the
assistance of the client, Solicitor or Taxing Master in seeking to assist in an
appreciation of the elements that go to the composite whole either by reference
of time attributed - when fees are marked retrospectively - or by reference to
their relative burden or importance: I believe only one brief fee is allowable.
There are many elements that go in to the setting, negotiating or determining
the appropriate level of brief fee. In the case of a taxation on a party and
party basis, Order 99(10)(2) provides that on a taxation on that basis
“.... there shall be allowed all costs as were necessary or proper for
the attainment of justice or for enforcing or defending the rights of the party
whose costs are being taxed”.
52. In
order to view the effort and exertion involved by Counsel, regard must be had
to the factual circumstances. When Counsel were originally engaged not even a
passable estimation of the duration of the Tribunal it seems was possible.
Notwithstanding the preparation, with Counsel’s assistance of the
preliminary Book 1, which in the events almost became the blue print for the
Tribunal, the range of topics to be studied and carried is a matter of
importance. The fact that (1) the briefing may have occurred on an ad hoc
basis as topics arose (2) the documentation, much or most of which came, (at
times over which the Applicant had no control) was voluminous, and very often
at short notice; added to the stress under which Counsel had to work. I cannot
and do not accept that the fee marked 150,000 guineas) or that allowed
£52,500) are correct nor do I think it proper to take the average of
£105,000).
53. When
Counsel marked the fee of £156,500 he did so retrospectively. I am aware
that the brief fees allowed to Messrs. MacGiolla and Rabbitte and Mr.
O’Malley were stated to the Taxing Master on 12th May, 1999 to be subject
by review to the Court ( Vol. 2B, p. 275) and the vexed question of allowing a
separate fee for Parliamentary Privilege was unresolved.
54. In
my opinion and judgment the amount of disallowance on Senior Counsel’s
brief fee is so much in error as to be unjust. In my judgment the proper brief
fee should be £75,000.