High Court of Ireland Decisions

1. These proceedings concern the taxation of costs in the lengthy litigation which took place between the Plaintiffs and the Defendants in this Court. The proceedings commenced by Plenary Summons in 1986 and concluded with the giving of judgment and the making of orders, including orders for costs, by the learned Lynch J in 1997. There are two sets of proceedings in regard to costs before the Court, the first in time being Judicial Review proceedings in which leave to apply for judicial review was granted by Order of Barr J on 22 June 1998. The second set of proceedings come before the Court by way of a Motion to Review the taxation of the Defendants' costs pursuant to Order 99 Rule 38(3) of the Rules of the Superior Courts.

Both the judicial review proceedings and the Motion to Review are brought by the first, second, fifth and sixth named Plaintiffs. I shall refer to these, for convenience, as "the Bula Plaintiff's" or, where relevant "the Bula Parties". The third and fourth named Plaintiffs ("the Roche Plaintiffs") took no part in the instant proceedings. The "Roche Plaintiffs" have in fact entered into a settlement with the various Defendants as regards the costs payable by them. I shall refer to this in greater detail later.

The Respondent in the judicial review proceedings is Master James Flynn, the Taxing Master who carried out the taxation of costs which is the subject matter of both sets of proceedings. The first to fourteenth named Notice Parties in the Judicial Review proceedings, who are also the first to fourteenth named Defendants in the Motion to Review proceedings, may be referred to as "the Tara Parties/Defendants", while the fifteenth and sixteenth named Notice Parties in the Judicial Review proceedings, who are also the fifteenth and sixteenth named Defendants in the Motion to Review proceedings, may be referred to as "the State Parties/Defendants".

In their Judicial Review proceedings the Applicants seek a considerable number of reliefs as set out in their originating Notice of Motion as follows:

1. An Order of Certiorari quashing two Interim Certificates respectively hereinafter called "the Interim Certificates" of the Taxing Master of the High Court, James P Flynn, made on the 20 May 1998 ("the Respondents") on account of the taxation of the costs in proceedings between the Applicants as Plaintiffs as first, second, fifth and sixth named Plaintiffs and Thomas C Roche and Thomas J Roche (hereinafter called "the Roche Plaintiffs") as third and fourth named Plaintiffs and the first to fourteenth named Notice Parties herein (hereinafter called the "Tara Defendants") and the fifteenth and sixteenth named Notice Parties (hereinafter called "the State Defendants") (Record No 1986 No 10898P) (hereinafter called "the Tara Proceedings") pursuant to Orders of Mr Justice Lynch ("the Learned Trial Judge") dated the 24 February 1997.

2. A declaration that part of the jurisdiction of the Taxing Master referred to in Order 99 Rule 38(1) of the Rules of the Superior Courts 1986 which empowers him to award such amounts by way of interim certificates "for that part of the Bill of Costs in dispute which the Taxing Master may consider reasonable" (hereinafter called the "new discretion") is:

(i) Ultra vires and/or illegal and

(ii) is invalid having regard to the provisions of Bunreacht na hEireann and in breach of the Applicants' constitutional rights of access to the Courts and/or fails to protect and vindicate the Applicants' constitutional rights of property from unjust attack

(iii) A declaration that the interim certificates are bad in law in so far as they did not measure and certify that the amounts set out therein are 25% of the "costs of trial" on the basis set out in the said Orders of the Learned Trial judge.

(iv) A declaration that the Respondent failed and omitted to carry out the directions of the Learned Trial Judge to measure 'one quarter of the costs of the trial' to include applications made in the course of the trial such as striking out applications and applications for interrogatories and inspection of documents between the dates of trial being 14 December 1993 to 19 November 1996 or at all.

(v) Alternatively, an Order of Mandamus directed to the Respondent to re-measure in accordance with law and review the certificates.

(vi) A declaration that the interim certificates are bad in omitting as between the named Plaintiffs to direct or declare by whom and in 'what respective amounts said sums referred to in the interim certificates should be paid in the light of the joint and several liability of the Applicants to pay the amount certified and that the admission and/or reliance of the Respondent on the Tara Defendants undertakings to abstain from double collection is illegal and irrational insofar as relied upon by the Respondent in certifying the said interim certificates.

(vii) A declaration that the issue of the interim certificates based solely on the exercise of the new discretion of the Respondent (notwithstanding objections under taxation before him) is a breach of the Applicants' right of access to the Courts within the meaning of Order 99 Rule 38(3).

(viii) An order that execution and all further proceedings on behalf of the Tara Defendants and/or the State Defendants on foot of the interim certificates and/or the part of the orders of Lynch J in refusing a stay of 25% of the costs awarded by him in the said proceedings be stayed until the appeal therefrom of which the Applicants named in the said proceedings have given notice of appeal dated 24 March 1998 shall have been heard and decided and for an order that the costs of this application abide the result of the said appeal.

(ix) Alternatively, an order staying any procedures that the execution of any such certificate of taxation pending the determination of the proceedings herein.

(x) A declaration that the Taxing Master of the High Court failed to comply with the principles of natural and constitutional justice and basic fairness of procedures in the manner in which he dealt with the taxation of costs as against the Applicants in so far as he conducted the taxation of all bills submitted by the Tara Defendants and the State Defendants concurrently while refusing to direct the said bills submitted against the Roche Plaintiffs to be disclosed to the Applicants in time for such concurrent taxation or at all.

(xi) A declaration that the ruling of the Taxing Master of the 31 March 1998 was in breach of his statutory duties and in breach of natural and constitutional justice because the Applicants were deprived of their rights to see the Defendants' several bills of costs against them in which items were duplicated for the same work as against the Roche Plaintiffs as against the Applicants.

(xii) A declaration that the Taxing Master of the High Court committed an error of law in misinterpreting and failing to identify correctly the costs of trial in the Tara Proceedings when computing the amounts set out in the certificate but took into account and adopted items and discounts offered by the Tara Defendants whose costs were being taxed as appears from the schedule purporting to be a breakdown of the certificate which was made available to the Applicants by the said Defendants and therefore in exercise of his purported discretion in the manner appearing from his certificate is unlawful.

(xiii) A declaration that the Respondent in his decision of the 25 March 1998 breached the principles of natural and constitutional justice and basic fair procedures in allowing items to be duplicated in the Bills of Costs taxed as against the Applicants and the same items to be also recoverable by the Tara and State Defendants against the Roche Plaintiffs in the Tara Proceedings for which costs the Applicants are jointly and severally liable with the Roche Plaintiffs.

(xiv) A declaration that there should have been only one Bill of Costs submitted as against the Applicants and the Roche Plaintiffs in the taxation of the Tara Proceedings because until the 4 October 1997 their case was conducted as if only one Plaintiff was prosecuting the Plaintiffs' claim.

(xv) A declaration that the Taxing Master of the High Court breached his statutory duties under Order 99 of the Rules of the Superior Courts 1986 and Order 31 Rule 25 in allowing the costs of Discovery of the Tara Defendants and the State Defendants in the Tara Proceedings as against the Applicants where such costs were not certified in the order for costs of Mr Justice Lynch.

(xvi) A declaration that the Respondent acted in excess of his jurisdiction in allowing the entire of the witness expenses in his determination of the costs of trial in the Tara Proceedings in his determination of the 31 March 1998 and/or in the alternative, including all Counsels' brief fees and 60% of the Solicitors' instructions fee as being included as part of the costs of trial.

(xvii) A declaration that the Respondent misinterpreted and/or misconstrued Order 99 of the Rules of the Superior Courts 1986 as amended and his obligations thereunder in making his decisions of the 25 March 1998 and the 31 March 1998 for the taxation of the costs of the Tara Proceedings.

(xviii) Alternatively a declaration that upon the interim certificates issuing from the Respondent, the Applicant herein, is entitled to apply to the Court for an order for review of the interim certificates pursuant to Order 99 Rule 38(3) of the Rules of the Superior Courts and/or the Courts and Court Officers Act 1995 and if necessary an order extending the time for applying for such review and a stay on execution on foot of the interim certificates until such review is determined.

The granting of these reliefs is opposed by the State parties in their statement of opposition dated the 30 October 1998 and by the Tara Parties in their statement of opposition dated the 26 February 1999. The Bula Plaintiffs' Motion to Review is also opposed by both the Tara Defendants and the State Defendants. All parties have provided the Court with written legal submissions in addition to the oral submissions of Counsel in both sets of proceedings; these have proved to be most helpful to the Court.

The History of the Litigation

While there can, of course, be no question of this Court considering the substantive issues in the original proceedings between the parties, it is of assistance when considering the question of costs to summarise the history of the litigation. The proceedings commenced by way of Plenary Summons dated the 17 November 1986. The hearing of the action commenced on the 14 December 1993, but was adjourned in January 1994 until the 4 October 1994, when it recommenced and ran until the 29 November 1996, for a period of 277 days. On the 4 October 1994, the third and fourth Plaintiffs (the Roche Plaintiffs) withdrew from the action. By order of the High Court (Lynch J) dated the 24 February 1997 the continuing Plaintiffs' (the Bula Plaintiffs) claim against all of the Defendants was dismissed. In relation to the issue of costs, Lynch J ordered:

"(1) That the [Tara Defendants] do recover against the [Bula Plaintiffs] their costs of these proceedings when taxed and ascertained on a party and party basis, said costs to include the costs reserved by the orders set forth in schedule 4 hereof;

(2) That execution on foot of the judgment set forth at (1) above be stayed with the exception of 25% of the costs of trial (to include applications made in the course of trial) for a period of 21 days from the date of perfection of this Order and in the event of the [Bula Plaintiffs] serving notice of appeal 'within that period and duly entering same that execution be further stayed until the final determination of such appeal.

AND IT IS FURTHER ORDERED

(a) that the [Tara Defendants] do recover against the [the Roche Plaintiffs] their costs of these proceedings when taxed and ascertained up to and including the 4 October 1994 . . .

And Counsel for the said [Roche Plaintiffs] having applied for a stay the Court doth refuse the same."

By further Order of the High Court (Lynch J) made on the 29 October 1997 the Court affirmed that certain costs of Interrogatories and Stenographers' fees incurred by the Tara Defendants (and the State Defendants) should be payable by the Plaintiff.

The Bula Plaintiffs appealed to the Supreme Court against the judgment and order of Lynch J made in this Court. By Order dated the 15 January 1999 the Supreme Court dismissed the appeal and affirmed the orders of this Court. I was informed by Senior Counsel for the Bula Plaintiffs, Mr Dempsey, that the Bula Plaintiffs have brought a Notice of Motion dated 3 June 1999 before the Supreme Court seeking to set aside that Court's order of 15 January 1999. This Motion has not yet been heard by the Supreme Court and I consider that I should deal with the present proceedings in the context of the orders which have been made both by this Court and by the Supreme Court at the time of the hearing of these proceedings before me. It would, I consider, be both undesirable and improper for this Court to speculate as to the outcome of the Bula Plaintiffs Notice of Motion before the Supreme Court.

The taxation which is the subject matter of the present proceedings took place before Taxing Master James Flynn on the 3, 4, 5 and 6 December 1997. The Taxing Master ruled on the matter on the 25 March 1998. Objections were carried into the Taxing Master in respect of his ruling by the Bula Plaintiffs on the 12 May 1998. The hearing before the Taxing Master in respect of the objections raised took place on the 25 May 1998. The Taxing Master delivered his ruling on the objections on the 9 July 1998. The Taxing Master in his ruling rejected the objections carried in by the Bula Plaintiffs.

The Judicial Review Proceedings

At the commencement of the hearing before me Senior Counsel for the Tara Parties, Mr Ryan, raised as a preliminary point whether it was open to the Applicants to bring Judicial Review proceedings in a situation where an alternative remedy was available to them by way of Motion to Review under Order 99 Rule 38(3) and where, in addition, they had in fact availed of that remedy. In making this submission Counsel relied on State (Abenglen) v Dublin Corporation [1984] IR 384 where the Supreme Court had held that where the State had provided "a self contained administrative scheme", the Courts should not intervene by way of judicial review when the statutory appellate procedure was adequate to meet the complaint on which the application was grounded. In the Abenglen case the "administrative scheme" in question was the planning code but in the instant case it was submitted by Counsel for the Tara Parties, with the support of Counsel for the State Parties, that a self contained administrative scheme with regard to the taxation of costs had been provided under Order 99 of the Rules of the Superior Courts and that this had been reaffirmed by the provisions of the Courts and Courts Officers Act 1995 Section 27.

Senior Counsel for the Applicants, Mr Dempsey, submitted that the rule in regard to the exhaustion of alternative remedies was by no means so clear cut as was suggested by the Notice Parties, and that a different approach had been taken to the point in the Supreme Court's decision in P & F Sharpe Limited v Dublin City and County Manager [1989] IR 701 and by Barr J in this Court in Tennyson v Dun Laojghaire Corporation [1991] 2 IR 527.

Mr Dempsey also referred the Court to an interesting discussion on the subject of the availability of alternate remedies contained (at pages 734-739) in the Third Edition of Administrative Law in Ireland by Hogan and Morgan. In this discussion the authors comprehensively and usefully survey the decisions on this point from the Abenglen case onwards. The approach taken in the Abenjglen case was followed in a number of other decisions such as Nova Colour Graphic Supplies Limited v Employment Appeals Tribunal [1987] IR 426 and O'Connor v Kerry County Council [1989] ILRM 660, but the authors point out that this approach has been put in doubt as a result of the Supreme Court decision in the P & F Sharpe case. Having commented on other decisions which followed the approach taken in P & F Sharpe, the authors conclude:-

"Upon these divergent authorities, three comments may be offered. In the first place; the two lines of authority are presumably grounded on different policy views in that the Abenglen line takes the view that if the Applicant had a fair, full trial on the merits available to him, on appeal, then he has little to complain about. The alternative, Sharpe view is that the Applicant is entitled to a proper decision at the initial stage without being put to the trauma, delay and expense of an appeal. The second comment is to suggest that a partial reconciliation may be made between the two views by focusing on the basic assumption of whether the appeal does indeed put the Applicant in as good a position as he would have been in, had the initial decision being intra vires and valid. The adequacy of the alternative remedy is a matter mentioned in the introductory remarks to this Part and its significance is tested in many authorities, something of this approach is adopted in the passage from Mythen just quoted. It is stated even more explicitly in Gill v Connellan [1987] IR 541, a case where the Applicant was convicted in the District Court in circumstances where his solicitor was not afforded an adequate opportunity to make legal submissions. While Lynch J accepted that, as a general rule, the proper course was to exhaust appellate remedies, the present case was different:

"neither the facts nor the law have been adequately heard in the District Court. On appeal to the Circuit Court, therefore, the appeal could hardly be said to be by way of rehearing -- the case would more truly be heard for the first time. The Applicant and his solicitor would be deprived of the possible advantages of having gone over the whole facts and law and of having heard the submissions and cross-examination by the prosecuting Superintendent in the District Court."

The third comment, in contrast to the first two, approaches the question not from the perspective of the individual but from the general interest of the legal system in ensuring that public bodies remain within their appointed bounds. From this perspective, it would seem that the availability of an alternate remedy militates in favour of the Court exercising is discretion to grant relief. Finally, it may be said that since the appellate body involved in both Abenglen and Sharpe was the same (An Bord Pleanala), these two cases seem hardly capable of being reconciled. However, it may be that some consistency can be built upon a reasonable principle by considering, in the context of a given case and the alleged blemish, exactly how comprehensive and appropriate is the right of appeal which was provided."

It seems to me that this is a correct commentary on the law as it stands at present, and that the admissibility of the Applicants' judicial review proceedings should be decided by considering exactly how comprehensive and appropriate is the right of appeal provided through the Motion to Review procedure.

There is no doubt that a review of the taxation by this Court provides a perfectly adequate remedy where what is in question is the correctness or otherwise, or the justice or injustice, of the specific rulings of the Taxing Master on individual matters of costs, and such matters should certainly be dealt with under the Motion to Review.

However, a number of the reliefs sought in the Judicial Review proceedings seem to me to lie outside this context and to partake of the nature, inter alia, of allegations of a breach of constitutional justice. I therefore decided, at least on a de bene esse basis, to hear submissions from the Applicants and the Notice Parties in regard to the Judicial Review proceedings.

It was contended by Counsel for the Tara Notice Parties and for the State Notice parties that a large number of the reliefs sought in the Judicial Review proceedings had now become moot. A number of the reliefs sought were framed in the context of the interim certificates of taxation issued by the Taxing Master pursuant to Order 99 Rule 38(1). The Applicants argued that the issuing of these certificates (and any attempt to execute on them) would act as a bar to the Applicants' constitutional right of access to the Supreme Court which arose under Article 34.4 of the Constitution.

I accept without hesitation that the Applicants' right of access to the Courts is an important constitutional right and that the right of access to the Courts includes a proper right of appeal. However, on the facts the issue of the interim certificates by the Taxing Master had not prevented the Applicants from pursuing their appeal in the Supreme Court and the Bula Parties had not in fact made any payment whatsoever on foot of the interim certificates. The Supreme Court has now confirmed the orders made by this Court and the final certificate of taxation has issued. I would therefore accept the submission of the Notice Parties that the issues concerning the interim certificates are a moot.

Counsel for the Applicants drew my attention to the forthcoming Motion re-entering the matter before the Supreme Court and suggested that the Tara Parties and the State Parties might seek in the meantime once again to rely on the interim certificates. There was, however, no evidence before me as to such a step being taken and I regard it as an unlikely possibility. I understand that the Motion will be heard by the Supreme Court in the very near future. I am not prepared to grant relief by way of judicial review on such a quia timet basis. I will therefore refuse the reliefs sought at paragraphs 1, 2, 3, 6, 7 and 18 of the Applicants original Notice of Motion dated the 2 July 1998.

A number of the other reliefs sought by the Applicants on 2 July 1998 have also become moot due to the progress of events since that date.

The Costs Order made by the learned Lynch J on 24 February 1997, in regard to the costs to be paid by the Bula Parties, provided that execution on foot of the Costs Order. The stayed with the exception of 25% of the costs of trial (to include applications made in the costs of trial) for a period of 21 days from the date of perfection of this Order and in the event of the first, second, fifth and sixth named Plaintiffs serving Notice of Appeal within that period and duly entering same that execution be further stayed until the final determination of such appeal." This stay provision had application solely to the period which elapsed between the making of that Order and the determination of the Appeal by the Supreme Court. The Appeal was determined by the Supreme Court on 15 January 1999 and the stay provision therefore is no longer applicable. The Applicants are now liable for the costs of the proceedings as opposed to the costs of trial. The various reliefs sought arising out of paragraph three of the Order of Lynch J, are therefore also moot. The question as to the position which would arise in connection with paragraph 3 in the context of the matter being reopened before the Supreme Court is, I consider, one to be decided by that Court. I therefore refuse the reliefs sought at paragraphs 4, 5, 8, 9 and 12 of the Applicants Notice of Motion.

A number of reliefs sought by the Applicants deal with detailed issues arising out of the actual taxation, issues which were also covered in the objections carried into the Taxing Master by the Bula Plaintiffs. It seems to me that in regard to these reliefs a "comprehensive and appropriate right of appeal" is provided by way of the Motion to Review. It is therefore inappropriate to deal with these matters by way of judicial review. I will therefore refuse the reliefs sought at paragraph 15 (costs of discovery) and paragraph 16 (witness expenses, Counsels Brief Fees and Solicitors Instructions Fee) of the Applicants' Notice of Motion.

There remain the issues raised in paragraphs 10, 11, 13 and 14 of the Notice of Motion, together with the general declaration sought at paragraph 17. This issue turns basically on the danger that, on account of the method of taxation adopted by the Respondent Taxing Master, the Applicants will be exposed to double claims for a large proportion of the costs incurred by both the Tara Parties and the State Parties. It is, in fact, the central plank of the Applicants' argument in the Judicial Review proceedings. Counsel for the Applicants submits that the Judicial Review proceedings are now primarily focused on the issue of the manner of the taxation, and that the relief sought goes to the very substance of the Taxing Master's conduct of the taxation.

Counsel for the Tara Parties submit that these issues also are not appropriate for Judicial Review proceedings and ought properly to be adjudicated upon in the Applicants' Motion to Review. The Applicant refutes this argument by submitting that the review remedy under Order 99 Rule 38 is limited to questions of whether specific items in the Bill of Costs were rightly or wrongly allowed or disallowed on taxation and is fundamentally concerned with issues of quantum, whereas the matter at issue here goes to the essential manner and method whereby the Taxing Master reached his primary decision. Order 99 Rule 38(3) provides that:

"Any party who is dissatisfied with the decision of the Taxing Master as to any items which have been objected to as aforesaid or with the amount thereof, may within 21 days from the date of the determination of the hearing of the objections or such other time as the Court or the Taxing Master may allow, apply to the Court for an Order to review the taxation as to the same items and the Court may thereupon make such Order as may seem just . . ."

It seems to me that in essence Counsel for the Applicant is correct in saying that this review deals with individual items and with quantum. Accordingly, I accept that the central question of the manner of the taxation is a suitable matter for judicial review and should be considered in the context of the Judicial Review proceedings.

The Applicants contend that the concurrent taxation of both the Applicants and the Roches' Bills of Costs result in duplication on those bills and is a breach of natural and constitutional justice, and that the basis of the initial taxation itself was inherently flawed.

In his Order dated the 24 February 1997 the Learned Lynch J provided as follows:

"IT IS ORDERED that the claims of the Plaintiffs and each and all of them as against the Defendants and each and all of them are hereby dismissed.

AND IT IS ORDERED

(1) that the first, second, third, fourth, fifth, sixth, seventh, eighth, ninth, tenth, eleventh, twelfth, thirteenth and fourteenth named Defendants do recover against the first, second, fifth and sixth named Plaintiffs their costs of these proceedings when taxed and ascertained on a party and party basis said costs to include the costs reserved by Orders set forth in schedule 4 hereof;

(2) that the fifteenth and sixteenth named Defendants do recover against the first, second, fifth and sixth named Plaintiffs their costs of these proceedings when taxed and ascertained on a party and party basis said costs to include the costs reserved by the Order set forth in schedule 4 hereof;

(3) that execution on foot of the judgment set forth at (1) and (2) above be stayed with the exception of 25% of the costs of trial (to include applications made in the Court of Trial) for a period of 21 days from the date of perfection of this Order and in the event of the first, second, fifth and sixth named Plaintiffs serving Notice of Appeal within that period and duly entering same that execution be further stayed until the final determination of such appeal.

The said stay having been granted on foot of the undertaking given by the first, second, fifth and sixth named Plaintiffs to expedite their appeal with liberty to the Defendants to apply in the event of a failure to abide by the said undertaking.

IT IS FURTHER ORDERED

(a) that the first, second, third, fourth, fifth, sixth, seventh, eighth, ninth, tenth, eleventh, twelfth, thirteenth and fourteenth named Defendants do recover against Thomas C Roche and Thomas J Roche the third and fourth named Plaintiffs their costs of these proceedings when taxed and ascertained up to and including the 4 October 1994;

(b) that the fifteenth and sixteenth named Defendants do recover against the said third and fourth named Plaintiffs their costs of these proceedings when taxed and ascertained up to and including the 4 October 1994; and Counsel for the said third and fourth named Plaintiffs having applied for a stay the Court doth refuse the same."

By further Order of Lynch J made on the 29 October 1997 the Court affirmed that certain costs of Interrogatories and Stenographers' fees incurred by the Tara Defendants and the State Defendants should be payable by the Plaintiffs.

It is accepted by all parties that up to 4 October 1994, when the Roche Plaintiffs withdrew from the case, the Plaintiffs' case was run as a single case, and that the Tara Defendants and the State Defendants put forward their respective defences to it. It is also accepted that the costs of the various Defendants up to 4 October 1994 were granted by this Court on a joint and several basis against both sets of Plaintiffs. Thus the Tara Defendants have an order that the costs of their defence against the case put forward by all the Plaintiffs up to 4 October 1994 should be met jointly and severally on a party and party basis by the Bula Plaintiffs and the Roche Plaintiffs. Similarly the State Defendants have an order that the costs of their defence against the case put forward by all the Plaintiffs up to 4 October 1994 should be met jointly and severally on a party and party basis by the Bula Plaintiffs and the Roche Plaintiffs.

However, neither the Tara Defendants nor the State Defendants may recover costs "on the double"; each group of Defendants may only recover the one set of costs actually expended by it. This was accepted without question by Counsel for the Tara Defendants and by Counsel for the State Defendants in open Court before me. Subsequent to 4 October 1994, of course, the entire of the Defendants costs fall to be met by the Bula Plaintiffs.

When the Taxing Master came to tax the costs, he proceeded by way of a concurrent taxation in which the Tara Parties produced separate Bills of Costs against the Bula Plaintiffs and against the Roche Plaintiffs. Similarly the State Defendants produced separate Bills of Costs against the Bula Plaintiffs and against the Roche Plaintiffs. As might be expected, many items appeared on both Bills. The Bula Parties complain that this method of procedure will lead to duplication; that the Defendants will simply add the two Bills of Costs together and, having settled (as they have) with the Roche Plaintiffs in regard to costs, will endeavour to recover all the rest of the outstanding amount against the Bula Plaintiffs.

The Defendants denied that this would happen. They state that the amounts paid by the Roche Plaintiffs to the Tara and State Defendants will be credited against the amount owed by the Bula Plaintiffs and that there will be no duplication.

The Plaintiffs also complain that the Taxing Master acted in a manner lacking in constitutional justice in that they were not formally served with the summons to tax or the Bill of Costs in the Roche Taxation. It appears, however, that they were in fact represented at that taxation and that they received (albeit informally) the Roche Bill of Costs. Both in the original taxation and at the hearing of the objections they had ample opportunity to put forward their objections to the Taxing Master's approach and method and also to object to individual items. On balance it does not appear to me that the failure to effect formal service of either the Summons or the Bill amounted in reality to a transgression against the audi alteram partem principle or a failure to act in accordance with constitutional justice.

The danger of duplication does, however, seem to have a certain amount of foundation. Had a single Bill of Costs representing the full party and party costs incurred by the Tara Defendants up to 4 October 1994 been produced and taxed, the Tara Defendants could then have executed jointly and severally against the Bula and Roche Plaintiffs. It would then be up to the two sets of Plaintiffs, if they could not reach agreement, to litigate the apportionment of this Bill of Costs between them. I would accept that, whatever the bona fides of the Defendants in regard to avoiding duplication, the system actually implied is more complex and more likely to lead at least to confusion and mistake.

Counsel for the Applicants submitted that the correct course for the Taxing Master would have been himself to apportion the costs as between the Bula Plaintiffs and the Roche Plaintiffs. In his written submissions to this Court he states:-

"It is submitted that as the Respondent proceeded with the concurrent taxation of both the Applicants and the Roches Bills of Costs, the Respondent should have at least made an appropriate apportionment between the Applicants and the Roches' with regard to items which were claimed in both Bills of Costs in the same amount against both, and so thereby correctly as a matter of law and fact apportion the liability for the costs of the State and Tara Parties awarded against the Applicants in the Tara Proceedings. This duty to make an apportionment is clearly identified and applied in a judgment of McCracken J in Smyth v Tunney [1999] 1 ILRM 211 where costs were awarded to the Defendants in one of two motions in both of which an identical affidavit had been filed by them that the Taxing Master omitted to make an apportionment. The learned Judge held that this omission was likely to lead to a totally unjust result'."

Counsel also pressed this argument in oral submissions.

In Smyth v Tunney the main action was dismissed by Murphy J in the High Court and the Plaintiffs appealed to the Supreme Court. Subsequently, two motions came before the Supreme Court and were heard together, one being a motion by the first and second named Defendants to strike out the Appeal for want of prosecution and the other being a motion by the Plaintiffs to adduce additional evidence in the Supreme Court. The Supreme Court dismissed the application to adduce additional evidence and awarded the costs of that Motion to the Defendant such costs to be taxed in default of agreement. The costs of the other motion were reserved. The Defendants appealed to the High Court from the Order of the Taxing Master which disallowed certain items of costs and reduced the amount recoverable in respect of the other items.

McCracken J in finding for the Defendants held that the Defendants filed only one affidavit, but it was used in respect of both Motions and was almost exclusively devoted to answering the application to adduce additional evidence. The Taxing Master had erred in finding that the items claimed in respect of this affidavit were not covered by the Order for Costs. The principle of apportionment applied since to find otherwise could lead to a totally unjust result and 75% of the costs claimed in respect of the affidavit should be attributed to the Motion to adduce additional evidence. The same principle applied to the attendance of the Defendant's solicitor.

It does not appear to me that on the facts this is a situation similar to that in the instant case. To allow a proportion of the costs of a single affidavit is very different from embarking upon a full apportionment of costs as between two sets of Defendants where, as a matter of law, the responsibility of those Defendants for the said costs is joint and several.

Counsel for the Applicants opened a number of other cases in which the Court upheld that some form of apportionment should take place. However, in each of these cases the facts differ substantially from those in the instant case -- for example the Court found for one Defendant and against another, etc. Based on these cases Counsel for the Applicants concludes that from the authorities it can be clearly seen as well established that in the context of taxation of costs of multiple Plaintiffs and Defendants or multiple Motions or steps taken in the one set of proceedings against one or more sets of Plaintiffs or Defendants, the claiming party can only recover the amount of the costs which were actually incurred in the work done. Such costs should be apportioned and attributed where appropriate to the costs incurred of the action against various Plaintiffs or Defendants, depending on their contribution to the proceedings. Mr Dempsey is of course correct in concluding that the claiming party can only recover the amount of costs which were actually incurred in the work done, and it might well be seen as reasonable or in the interests of justice that the costs be apportioned between the various paying parties.

However, this raises the major question as to whether the Taxing Master has the power himself to direct apportionment where apportionment forms no part of the Order of the Court itself. It seems to me that he has not. In McGauran v Dargan [1983] ILRM 7 at page 9 the Learned Gannon J described the Taxing Master's function as "ancillary to the judicial process only in the sense of being supplementary to it but not forming an essential part of it". Gannon J went on to state that:

"He (the Taxing Master) provides a service of a very limited nature which may be directed by the Courts the essence of his function, stated in broadest terms, is to ensure that the charge as furnished by a solicitor to an adverse party held liable for them, or to his own client, or to a designated fund shall be no more than reasonable in accordance with the prescribed rules."

The Taxing Master himself considered this matter in his ruling on the objections given on the 9 July 1998. It is clear that he rightly attributed great importance to the form and detail of the costs order made by Lynch J. He states that "much hinged on the actual Order and its significance" and it was on account of the form of the Order that he adopted the form of taxation that he did. In considering the Bula Plaintiffs' objections to that form, with its separate Bills of Costs, he was not unsympathetic to the Applicants' fears of duplication. At page 5 of the ruling he states:-

"The Plaintiffs have objected to the lodging of the two sets of Bills of Costs in respect of the two sets of Defendants. The Defendants have been awarded their costs as directed by the aforementioned Order and in the terms therein stated The Plaintiffs main concern, and indeed a justifiable concern, is that the items may be remunerated in excess of the actual costs incurred and claimed, however this cannot happen nor would it be allowed to happen."

At page 6 the Taxing Master stated:

"It was indicated to me that prior to taking up the final certificate of taxation as against both sets of Plaintiffs that an affidavit on behalf of the Tara Defendants would be filed in the Taxing Master's Office, which would state the extent, if any, of actual recovery of costs as against both sets of Plaintiffs on foot of any interim certificate of taxation which may have issued I am in agreement that the Defendants had no alternative but to lodge and serve separate sets of costs and would impress upon them that they, that is all the Defendants in this matter, should file affidavits in respect of the actual recovery of costs and this should satisfy the respective Plaintiffs that there will be no double recovery of costs."

It is clear that the Taxing Master was alert to the danger of duplication and that he intended to keep the matter under scrutiny so as to guard against it. I consider that the Taxing Master is correct, in a case of this size and complexity, in establishing a system of monitoring to ensure that there will be no double recovery of costs. The filing of these affidavits should apply to the final certificates of taxation in addition to any payment in regard to interim certificates. The affidavits should set out in some detail not alone the amount paid by way of costs to the Defendants but also the nature and extent of any agreement, settlement or accord and satisfaction reached between any of the Defendants and any of the Plaintiffs. One would hesitate in such a lengthy and costly case as this to suggest that any further litigation should take place. However, if in the eventual outcome the Applicants are dissatisfied with regard to the proportion of the overall costs up to the 4 October 1994 which fall to be paid by them, this is a matter not between them and the Defendants but between them and their fellow Plaintiffs.

Finally, it was submitted by Counsel for the Applicants that both the Tara Parties and the State Parties have entered into an accord and satisfaction with the Roche Plaintiffs and that this would result in a discharge or release of the remaining Plaintiffs. This, however. does not seem to me in accordance with the provisions of the Civil Liability Act 1961. Section 16 of that Act provides as follows:-

"16(1) Where damage is suffered by any person as a result of concurrent wrongs, satisfaction by any wrongdoer shall discharge the others whether such others had been sued to judgment or not.

(2) Satisfaction means payment of damages, whether after a judgment or by way of accord and satisfaction, or the rendering of any agreed substitution thereof.

(3) If the payment is of damages, it must be of the full damages agreed by the injured person or adjudged by the Court as to damages due to him in respect of the wrong; otherwise it shall operate only as partial satisfaction . . ."

Section 17 provides:-

"(1) The release of or accord with, one concurrent wrongdoer shall discharge the others if such release or accord indicates an intention that the others are to be discharged

(2) If no such intention is indicted by such release or accord, the other wrongdoer shall not be discharged . . ."

Counsel for the Tara Parties submits that there is no evidence before the Court indicating that there was an intention that the Bula Parties were to be discharged and that no such agreement was reached. While no detail of the agreements reached with the Roche Plaintiffs (other than the actual amount paid to the Tara Parties and the State Parties) is before this Court, there is indeed no evidence -- and indeed no likelihood -- that any intention existed to discharge the other Plaintiffs. I would therefore reject the Applicants submission in this regard.

To sum up, therefore, while like the Taxing Master, I consider that the danger of duplicate payment must be carefully and openly guarded against, I must refuse the reliefs sought by the Applicants in their Judicial Review proceedings.

Motions to Review

I now turn to the Motions to Review Taxation brought by the Bula Plaintiff against both the Tara Defendants and the State Defendants. Following the Taxing Master's ruling on the objections which he gave on 9 July 1998 both the Bula Plaintiffs and the Roche Plaintiffs brought Motions to Review under Order 99 Rule 38(3) of the Rules of the Superior Courts. The Roche Plaintiffs have, however, reached a settlement (as referred to above) with both the Tara Defendants and the State Defendants and have in fact paid over the monies agreed under this settlement. It is, therefore, solely the Bula Plaintiffs' Motions that are now before the Court.

Order 99 Rule 38(3) provides:

"Any party who is dissatisfied with the decision of the Taxing Master as to any items which have been objected to as aforesaid or with the amount thereof may within 21 days from the date of the determination of the hearing of the objections or such other time as the Court or the Taxing Master may allow, apply to the Court for an Order to Review the taxation as to the same items and the Court may thereupon make such Order as may seem just . . ."

Order 99 rule 38(4) provides:

"The application to the Court shall be made by Motion of Notice to the other party concerned, such Notice of Motion to be filed in the Central Office and a copy thereof filed in the Office of Taxing Masters and the Motion shall be heard and determined by the Court upon the evidence which shall have been brought in before the Taxing Master, and no further evidence shall be received upon the hearing thereof unless the Court shall otherwise direct."

It will be seen from this that the present Plaintiffs may seek a review of those items, and only those items, in regard to which they have already carried in objections to the Taxing Master. This Court may rely only upon the evidence brought in before the Taxing Master. Very full evidence and submissions were brought in to the Taxing Master during the hearings before him and complete transcripts of all the evidence have been provided for this Court. In addition the Taxing Master has given comprehensive and extensive rulings both at the original taxation and in response to the Objections. This Court, therefore, had no difficulty in ascertaining the evidence that was before the Taxing Master during the course of the taxation.

The role and powers of this Court in carrying out a review of taxation and the principles which should be followed by the Court in such a review have been considered in a large number of cases. A comprehensive and helpful review of the law in this area was carried out by the learned Laffoy J in her judgment in The Minister for Finance v Lawrence Goodman, Goodman International and subsidiary companies (unreported) 8 October 1999. At page 9 of her judgment the Learned Judge outlined the jurisdiction of this Court on a review as follows:-

"The jurisdiction of this Court to review the determination of the Taxing Master on objections carried in before him to the taxation is derived from Order 99, Rule 38(3), which I have already quoted in part. The nature and range of costs allowable on taxation, whether by the Taxing Master or by the Court on review, is also governed by Order 99. In the case of taxation on a party and party basis, Order 99, Rule 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' Order 99, Rule 37(18) precludes the allowance of any costs: '. . . which appear, "to have been incurred or increased through over caution, negligence or mistake, or by a payment of special fees to Counsel or special charges or expenses to witnesses or other persons or by other unusual expenses.'

The provisions of the Rules, which I have quoted, replicate the corresponding provisions of the Rules of the Superior Courts, 1962. Over the past thirty years, a consistent line of authority has emerged as to the proper approach to be adopted by this Court in applying those provisions."

Laffoy J went on to survey the leading decisions on the review of taxation over the years (at page 10 onwards) as follows:

"In Lavan v Walsh (No 2) [1967] IR 129, Kenny J compared Rule 38(3) of Order 99 as contained in the 1962 Rules with the corresponding provisions which had been in force since 1893 and stated as follows (at page 133):

'Sub-rule 3 of Order 99, Rule 38 thus contains two changes. The words 'part of an item' which were in the corresponding rule in the Rules of 1893 and of 1905 have been omitted and the words 'or with the amount thereof have been inserted. When these alterations in the rule dealing with applications to the Court are considered against the background of the decisions that the Court should not interfere with the amounts allowed for items, it seems to me that the changes were intended to alter the position which existed before the year 1963 and that the Court, when hearing an application to review, is now obliged to consider and adjudicate upon the amounts allowed by the Taxing Master for any items which appear in the Bill.'

Kenny J then went on to consider the statutory prescribed qualification for Office of Taxing Master in the following passage at page 133-4:

'Section 55 subsection I and the 8th Schedule of the Courts (Supplemental Provisions) Act 1961, provides that solicitors often years standing are the only persons qualified for the Office of Taxing Master and the Court must have regard to the fact that the Taxing Masters have more knowledge and experience of costs, insofar as they affect solicitors, than most Judges command and it should not lightly reverse a decision of a Taxing Master on the amount allowed for any item in a bill. This does not, however, absolve the Court from the obligation, imposed on by the rules, of considering the matter, because the same evidence is before it as was before the Taxing Master. I do not, accordingly, regard myself as being precluded by the earlier decisions from reviewing the amounts allowed by the Taxing Master on any bill whether it be between party and party or between solicitor and own client.'

The observations of Kenny J were considered in Dunne v O'Neill [1974] IR 180. At issue in that case was the disallowance by the Taxing Master of disbursements made by the Plaintiff's solicitor for fees to Counsel. On the changes wrought by the 1962 Rules, Gannon J stated as follows (at page 191):

'Since the adoption of the present Rules of the Superior Courts governing taxation of costs upon a review of a taxation by the Taxing Master, the Court is no longer confined to circumstances involving an error in principle on the part of the Taxing Master. This has been demonstrated in the very careful analysis of the present rules, as compared with the former Supreme Court rules, to be found in the judgment of Mr Justice Kenny in Lavan v Walsh (No 2).'

It was submitted on behalf of the companies and Mr Goodman that not only do the changes introduced in the 1962 rules not warrant such a conclusion, but that Kenny J, at no point in his judgment expressly stated that the pre-existing requirement of an error in principle had been abrogated.

While it is true that in the passage from the judgment in Lavan v Walsh (No 2) which I have quoted above, Kenny J did not expressly state that, on an application to review since the 1962 rules were introduced, the Court is obliged to consider and adjudicate upon the amounts allowed by the Taxing Master for any item irrespective of whether the Taxing Master erred in principle or not, in my view, it is beyond question that what was what he intended to convey. He had embarked on his comparison of the 1962 Rules and the earlier rules having stated that the many cases in Ireland on the earlier rules established that the Court would not interfere with the amounts allowed by the Taxing Master on the taxation of a bill between party and party or between a solicitor and own client 'unless it were shown that he had made a mistake in principle' and he cited the relevant authorities.

In Dunne v O'Neill Gannon J identified the test which the Taxing Master on taxation, and the Court on Review, must apply in determining whether disbursements made by a solicitor in respect of Counsel's fees are allowable in accordance with the rules relating to party and party taxation and he stated as follows (at pages 189-190):

'Because these items are disbursements made by a solicitor in the course of his practice in respect of fees to Counsel retained by him on his client's behalf the amounts of the disbursements should be assessed on the basis of what a practising solicitor who is reasonably careful and reasonably prudent would consider a proper and reasonable fee to offer to Counsel. This standard does not involve any presumption in favour of particular fees allotted by a solicitor to Counsel of his choice, but it does involve having due regard to the changes in what the practising solicitor considers to be reasonable derived from his day to day and year to year experiences in the course of his practice.'

Earlier in his judgment, at page 189, Gannon J had stated that it is not part of the function of the Taxing Master on taxation, or of the Court on Review, to examine the nature or quality of the work done by or required of Counsel or to assess, by measurement of fees, the value of Counsel's work.

The next landmark decision in the formulation of the modern jurisprudence on taxation of costs was the decision of Hamilton J as he then was, in Kelly v Green [1978] ILRM 63. Both solicitor's disbursements by way of fees to Counsel and the solicitor's general instruction fee were at issue in that review. In the context of the review of the general instruction fee, Hamilton J considered the judgments of Parke J in Irish Trust Bank Limited v Central Bank of Ireland [1976-7] ILRM 50, the decision of Kenny J in Lavan v Walsh (No 2), and the decision of Gannon J in Dunne v O'Neill and he stated as follows (at page 71):

'While I agree with Parke J that 'it is extraordinarily difficult for a judge to attempt to review such an item' as the proper fee to be allowed to a solicitor by way of instruction fee, I consider having regard to the views expressed by Kenny J in Lavan v Walsh and Gannon J in Dunne v O'Neill that there is an obligation on him so to do even when the Taxing Master did not proceed upon some wrong principle.'

In the context of the review of Counsel's fees, Hamilton J stated that the general principles laid down by Gannon J in Dunne v O'Neill were correct and he went on to set out nine principles applicable to the taxation of Counsel's fees, stating as follows in the ninth (at page 69):

'The Taxing Master in his exercise of his discretion is only entitled to disallow any or any part of a solicitor's disbursement, including Counsel's fees, if he is satisfied that no solicitor acting reasonably carefully and reasonably prudently based on his experiences in the course of his practice would have determined such fees or would have made such disbursements in the course of his practice.'

Prior to the enactment of the Act of 1995, the principles enunciated in Dunne v O'Neill and Kelly v Breen were consistently followed and, indeed, approved by the Supreme Court. In the State (Richard F Gallagher Shatter & Company) v De Valera [1991] 2 IR 198, Finlay CJ stated that those decisions had accurately and to a very large extent comprehensively set out the principles which were applicable to the function of the Taxing Master in relation to disbursements made by a solicitor on behalf of his client by way of Counsel's fees. While the authorities have continued to acknowledge the special knowledge and experience of the Taxing Master in relation to costs, there has been no suggestion that under the rules now in force the Court is only entitled to intervene where the Taxing Master proceeded upon a wrong principle.

Recent authorities in relation to taxations which predated the Act of 1995 have emphasised the different function of the Taxing Master, and of this Court on Review, in relation to the solicitor's general instruction fee and solicitor's disbursements. In the case of the solicitors general instruction fee the function of the Taxing Master is to determine the appropriate fee (v Wellcome Foundation Limited [1992] 1 ILRM 34, Smyth v Tunney (No 2) [1993] 1 IR 451). In the case of all solicitors disbursements, not just disbursements by way of Counsel's fees, the function is to determine whether no solicitor acting reasonably carefully and reasonably prudently, based on his experience in the course of practice, would have made the disbursements in question. (Staunton v Durkan [1996] 2 ILRM 509."

The learned Judge concludes (at page 17):

"On the authorities, it is clear that the Court is entitled to review, in the sense of alter, the Taxing Master's determination if it is shown that he has erred in principle or, alternatively, that, although applying correct principles, he has arrived at the incorrect amount for any item on the bill. It is in considering whether error has been shown, whether error of principle or error of quantification, that judicial restraint comes into play. However, if applying the standard of proof applicable to civil matters, proof on the balance of probabilities, the Court is satisfied that error has been shown, it must intervene and, as required by Order 99, Rule 38(3), substitute for the decision of the Taxing Master an order which achieves a just result."

I have no hesitation in adopting both the Learned Laffoy J's survey and her conclusions, with which I respectfully agree, as to the position which applied under Order 99, Rule 38(3) up to the enactment of the Courts and Court Officers Act 1995. Minister of Finance v Goodman, however, was decided under the self-contained code and body of jurisprudence on taxation of costs under Order 99. The present review must be carried out subject to the additional provisions of the Courts and Court Officers Act 1995. Section 27 of that Act deals in considerable detail with the functions and powers of the Taxing Master (or of the County Registrar in the case of the Circuit Court) in carrying out a taxation of costs. Section 27(3) provides:-

"The High Court may review a decision of a Taxing Master of the High Court and the Circuit Court may review a decision of a County Registrar exercising the powers at a Taxing Master of the High Court made in the exercise of his or her powers under this section, to allow or disallow any costs, charges, fees or expenses provided only that the High Court is satisfied that the Taxing Master, or the Circuit Court is satisfied that the County Registrar, has erred as to the amount of the allowance or disallowance so that the decision of the Taxing Master or the County Registrar is unjust."

Section 27(3) has been considered by this Court in two cases. In Smyth v Tunney [1999] 1 ILRM 211 it was held by McCracken J that the taxation of costs may be reviewed by the High Court where it is satisfied that the Taxing Master has erred and that his taxation is unjust. At page 213 of the report the Learned Judge stated:

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

The High Court may review a decision of a Taxing Master of the High Court made in the exercise of his or her powers under this section, to allow or disallow any costs, charges, fees or expenses 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.'

The principle upon which I must act, therefore, is not simply to decide whether the Taxing Master erred, but also, if I am to alter his decision, I must find that his taxation was unjust. I cannot approach this issue on the basis of trying to assess what costs I would have awarded had I been the Taxing Master. It is on this basis that I turn to consider the individual items in dispute."

In Tobin and Twomey Services Limited v Kerry Foods Limited and Kerry Group plc (unreported High Court 3 December 1998) Kelly J referred to the decision of McCracken J, in Smyth v Tunney and agreed with it. I respectfully share the views of both McCracken J and Kelly J as to how this Court should approach the review which is now before the Court.

The Items in Dispute in the Tara Bill of Costs

The primary items in dispute were usefully summarised by Senior Counsel for the Bula Plaintiffs. I will deal first with the items in dispute in the Tara Bill of Costs which are as follows:

(a) all of the items which have been separately claimed and allowed in Tara's Bill of Costs as against the Roche Plaintiffs.

(b) The number of Counsel allowed at various stages to the Tara Defendants.

(c) The allowance of an unspecified portion of the instruction fee and certain Appendix W items insofar as the same relate to the discovery sought by the Tara Defendants.

(d) Certain affidavits of Discovery furnished by the Tara Defendants.

(e) The allowance of a higher Brief Fee to Mr Frank Clarke SC as compared to the Brief Fees allowed to the Tara Defendants other Senior Counsel.

(f) The allowance of full refresher fees to Counsel on days other than the actual hearing days of the action.

(g) The quantum of the solicitors instructions fee.

(h) The allowance of disbursements under the heading of consultation room hire and faxes, stenographers' fees and witness expenses.

As far as the Motion to Review the State Parties Bill of Costs (with which I will deal later) is concerned the primary items to which the Bula Plaintiffs object are as follows:

(a) All of the items which have been separately claimed and allowed in the Bill of Costs as against the Roche Plaintiffs.

(b) The allowance of an unspecified portion of the instructions fee and certain Appendix W items insofar as the same related to the discovery sought by the State Defendants.

(c) The quantum of the brief fees allowed.

(d) Certain refresher fees allowed to Counsel.

(e) The quantum of the solicitors' instructions fee.

(f) The allowance of disbursements including fees to "documents Council", consultation room hire, stenographers fees and witnesses expenses.

As will be seen a number of the items in both Motions are similar, or parallel, and may be decided on the same principles.

Item (a) in both lists is the danger of duplication with which I have already dealt in my consideration of the Judicial Review proceedings. At this point I need only reiterate that every precaution must be taken to ensure that no duplication of payment occurs. Both the Taxing Master and the Bula Parties must be kept fully and precisely informed as to what claims for costs have been met by the Roche Parties by way of settlement or any other form of payment with the Tara Parties and the State Parties.

The Number of Counsel Allowed to the Tara Defendants

The Bula Plaintiffs submit that the increased costs resulting from the employment of three Senior Counsel by Tara were brought about by over-caution, or by payment of special fees to Counsel which is prohibited pursuant to Order 99, Rule 37(18) of the Rules of the Superior Courts which provides:

"On every taxation the Taxing Master shall allow also such costs, charges and expenses as shall appear to him to have been necessary or proper for the attainment of justice or for enforcing or defending the rights of any party but, save as against the party who incurred the same, no costs shall be allowed which appears to the Taxing Master to have been incurred or increased through over-caution, negligence or mistake or by payment of special fees to Counsel or special charges or expenses to witnesses or other persons or by other unusual expenses."

Counsel for the Plaintiffs referred to the fact these were party and party costs and also referred to a number of dicta in regard to party and party costs set out in previous cases. In particular he referred to the case of Dyott v Reade 110 (1876) ILTR where it was stated:

"That costs between party and party are not the same as solicitor and client costs. In costs between party and party one does not get full indemnity for costs incurred against the other. The principle to be considered in relation to party and party costs is that you are bound in the conduct of your case to have regard to the fact that you adversary may in the end have to pay the costs."

In Smyth v Butler 19 Eq 475 the Court held:

"I adhere to the rule which has already been laid down that costs chargeable on the taxation as between party and party are all that are necessary to enable the adverse party to conduct the litigation and no more. Any charges merely for conducting the litigation more conveniently will be called "luxuries" and must be paid for by the party incurring them."

In Kelly (Infant) v Hoey (18 December 1973 unreported) Butler J in the High Court stated:

"That in costs as between party and party, the party awarded costs is not entitled to a full indemnity, but only to such costs as have been reasonably or properly incurred to enable him to conduct the litigation. Charges for items which are not strictly necessary but are incurred merely to enable him to conduct the litigation more conveniently are to be deemed 'luxurious' and disallowed".

Counsel went on to refer to the evidence given by Mr Michael O'Mahony. Solicitor for the Tara Parties, at the taxation and argued that from a careful consideration of his evidence the only reasonable conclusion which the Taxing Master ought to have reached was that the Tara Defendants engaged three Senior Counsel and one Junior Counsel due to the very voluminous documentation involved and the danger that the original three Counsel involved in the case might not have been available to the listing of the ICI/AlB/Ernst & Whinney case at the same time. In all of the circumstances the fees paid to a third Senior Counsel by the Tara Defendants arose from conducting the litigation more conveniently (luxury), from over-caution, as a retaining fee to Counsel and/or by way of special or unusual expense. None of these matters were allowable on a party taxation.

Senior Counsel for the Tara Parties, Mr Ryan, accepted the dicta in regard to party and party costs set out above but argued that it was implicit from Order 99 Rule 37(18) and the case law that costs which are required for the conduct of the litigation to attain justice or to enforce or defend rights are party and party costs. He submitted that an analysis must be carried out in respect of each particular cost, however unusual, to determine whether it was in fact incurred to attain justice or to enforce or defend the rights of the incurring party. The considerations which applied when determining the number of Counsel allowable on a party and party taxation had been set down in a number of cases. In Butler v Bracken 1 ILTR 192 the Lord Justice of Appeal stated that:

"The number of Counsel allowable in a case is dependent upon the magnitude, complexity and importance of the case."

In Dunlop Pneumatic Tyre Company Limited and Others v The Wapshare Tube Company Limited 17 RPC 433, Buckley J stated at page 460 of the report, the considerations which a Court has to apply in determining the number of Counsel allowed as:

"The only test which I have to apply is whether assuming all three will be here all the time, a reasonable and prudent person would have employed three Counsel".

In Irish Trust Bank Limited v The Central Bank of Ireland [1976-7] ILRM 50 Parke J in the Supreme Court commented that:

"The briefing of three Senior Counsel is of course unusual except in an unusual case"

and further stated at page 58 of the report:

"It seems to me however that alongside this rule there must be placed another proposition that if a party is confronted with an extremely difficult case presented on the pleadings by the other party he is not obliged to cut his cloth to suit his opponent's purse . . . If in the result this proves highly expensive to the Defendant. I cannot ignore that much of the greater part of the expense was due to the course unsuccessfully adopted by the Defendants."

Parke J determined that having regard to the serious allegations raised on the pleadings and the heavy burden placed on the Plaintiffs legal advisers to vindicate and establish the Plaintiffs rights, the briefing of a third Senior Counsel was required to attain justice between the parties. Counsel for the Tara Defendants accepted that the briefing of a third Senior Counsel was unusual but pointed out that the Bula litigation was indeed what Parke J, had described as an unusual case. The evidence before the Taxing Master established that the particular circumstances of the case, including the serious nature of the allegations, the numerous changes of allegations made against the Defendants, the technical nature of the evidence and the quantum of the claim made required three Senior Counsel adequately to defend the Tara Defendants' rights. Mr O'Mahony, solicitor for the Tara Defendants, had given lengthy evidence before the Taxing Master of the necessity for three Senior Counsel and had in particular given evidence that Mr Fennelly, the leading Senior Counsel for Tara, had advised that three Senior Counsel were necessary.

Having heard lengthy evidence on the subject the Taxing Master in his ruling concluded:

I am of the opinion that the Defendants herein were entitled to employ three Counsel from the Inner Bar, and that the solicitors had been so advised by Counsel, and that the Defendants should not have ventured into Court without the assistance of three Senior Counsel, whether or not all three had been present contemporaneously, given the extent and duration of the pre-trial and trial healing, the complexity of the matter, the shifting in the focus of the allegations and the apparent difficulties encountered by the Defendants."

On a practical level the Taxing Master remarked:

"In the instant matter I have no doubt that the Defendants, and in particular the first named Defendant, Tara, had no idea where the point of the case was as the issues seemed to shift full circle. Furthermore, Counsel could not be expected to give a guarantee as to their attendance in a case that had taken such an inordinate amount of time. However, Counsel had to help each other if the case progressed. If full attendance in this case was complied with its gestation period often years would have rendered the Counsel possibly unemployable which cannot be acceptable in such a highly competitive profession".

The Taxing Master's remarks here as to the changing issues in the case echo some of the comments of the learned Lynch J in his judgment at the conclusion of the trial. The Taxing Master reiterated these comments and his conclusions in his ruling on the objections.

I would accept the full analysis given by the Taxing Master both in his original ruling and in his ruling on the objections. In particular his comments on the practical difficulties of Counsel who appear in such protracted and complex litigation accord with the practicalities of work at the Bar. It seems to me that the Taxing Master has not erred in his decision to allow the costs of three Senior Counsel, nor is his decision unjust.

The Allowance of a Higher Brief Fee to Mr Frank Clarke

On the taxation the Taxing Master allowed a brief fee of £75,000 as claimed for Mr Clarke, whereas the brief fees claimed for each of the other two Senior Counsel employed by Tara was £55,000. The Bula Plaintiffs object to this extra fee on the ground that it is a retaining fee or a special fee. As such it should be disallowed.

Mr O'Mahony, Solicitor, at the taxation gave evidence that Mr Clarke came into the case at a later stage than his colleagues Mr Fennelly and Mr Feeney. On that account he had to devote a great deal of time and energy to reading the immense amount of complex documentation briefed to him. The Plaintiffs argue that all Counsel had to read the documentation regardless of when they were instructed. The extra fee was, therefore, by way of a special fee sought by that particular Counsel.

The Tara Defendants submit that an objective test must be applied as to "whether it would have been reasonable for a reasonably careful and reasonably prudent solicitor to have agreed this fee" (Keane J as he then was at page 483 of Commissioners of Irish Lights v Maxwell [1997] 3 IR 474). Further they submitted that the function of the Taxing Master, and the Court in a review, is "to examine the fees agreed between Counsel and the instructing solicitors first of all in the nature of the arrangements itself and then by reference to the standard of the hypothetical experienced and knowledgeable solicitor briefing the hypothetical Counsel who was competent to conduct the heavy and difficult case . . . (per Murphy J in Smyth v Tunney [1993] 1 IR 451 at page 466).

The evidence given before the Taxing Master established that the figure negotiated with Mr Clarke as a brief fee took account of the factual situation that Mr Clarke had no previous involvement with the case whereas the other Senior Counsel did as a result of previous advices and motions in the matter going back to 1987. Mr Clarke had also agreed with the Tara Solicitors that if the case settled at particular stages he would accept considerably lower fees.

The Taxing Master considered the fee to be paid to Mr Clarke at some length but in his ruling accepted that it came within the paramaters of Order 99 and of Section 27 of the 1995 Act. Section 27(1) provides that:

"On a taxation of costs as between party and party by a Taxing Master of the High Court . . . the Taxing Master shall have power on such taxation to examine the nature and extent of any work done, or services rendered or provided by Counsel (whether Senior or Junior) and may tax, assess and determine the value of such work done or services rendered or provided in connection with the measurement, allowance or disallowance of any costs, charges, fees or expenses included in the Bill of Costs."

It seems to me that in the circumstances the Taxing Master carried out this examination and assessment and it was within his discretion to allow the particular fee paid to Mr Clarke. While Mr Clarke's colleagues had, indeed, to read and absorb the same amount of material as he, they had had a number of years to do so and gradually to acquire familiarity with the case as a whole. Mr Clarke, on the other hand, had to prepare for the case in a comparatively short time and from a position of being totally unfamiliar with it. I do not consider that the Taxing Master erred in his decision or was unjust in allowing Mr Clarke's brief fee. The same considerations apply to the payment of higher refreshers to Mr Clarke during the course of the trial.

Refresher Fees of Counsel

The hearing of the main action, which included various motions both at the start and during the currency of the trial, ran for 272 days. As is generally accepted the Taxing Master held that the brief fees for Counsel covered the first day of the action and he allowed refresher fees for Counsel based on the remaining 271 days of the trial. The Bula Plaintiffs object to this on the grounds that distinct and lesser refresher fees ought to be allowed for days when motions were heard during the course of the trial. Counsel for the Bula Plaintiffs pointed out that on the first three days of the trial (14th, 15th and 17th December 1993) the Court heard and delivered judgment on the motion to strike out the defence of the first, second, fourth and twelfth named Defendants. The Bula Plaintiffs' case is that Counsel's brief fee for the first day of that motion was admitted to be included in the overall brief fee and that the subsequent refreshers ought to be a distinct and lesser amount. The same argument is applied to days 27 to 32 of the trial when an interrogatories motion was heard. The first day of that motion should be a lesser brief fee, which was included in the overall brief fee, and it is argued that the refreshers for the following five days should also be for a lesser amount.

By and large this argument is based on Order 52 Rule 17 of the Rules of the Superior Courts which sets out applications in which one Counsel only shall be allowed "unless the Court shall otherwise order". It is argued on behalf of the Bula Plaintiffs that the costs of one Counsel only should be allowed when there were motions at hearing as opposed to the actual trial of the main action.

In response to this Counsel for the Tara Defendants submit that this objection is fundamentally misconceived in that Lynch J certified in his Order of the 24 February 1997 the dates during which the action was heard and that this certification is conclusive. It is therefore immaterial whether a motion or the main action was at hearing during those days which were certified.

I would accept that the matter of the days of trial is governed by the Order of the learned Lynch J and that the normal refreshers should be paid in accordance with the days of trial as certified by him. In addition I would refer to the judgment of McCracken J, in Smyth v Tunney [1999] 1 ILRM 211 at page 214. In that case the question arose as to whether brief fees for two Senior and one Junior Counsel could be allowed on a motion. In that case the Taxing Master had allowed only one Senior Counsel. The learned McCracken J, dealt with the question as follows:-

"In his report, the Taxing Master laid considerable stress on the fact that this was a motion and he quoted the old case of In Re South Meath Election Petition (1893) 32 LR Ir 407 as authority that only two Counsel will be allowed on a motion except in very special circumstances. As a general statement of practice I think this is correct, but in my view there were very special circumstances in the present case. This is a case which had been heard over a period of seventeen days in the High Court. The motion was of the utmost importance, as it sought to adduce additional evidence on dispute as to fact, which had been determined against the Defendants. The reality was that if the motion failed, the Supreme Court almost certainly was going to uphold the findings of fact by the trial judge, which findings went to the heart of the case. Success in this motion might well have meant success on the appeal, or at least a re-trial. In my view this motion was of such importance as to constitute exceptional circumstances, and I think the Taxing Master was wrong to disallow one Senior Counsel."

It seems to me that the motions in the instant case were equally of very great importance. It was obviously crucial to the Defendants' case that it should not be struck out at the beginning of the trial, while the interrogatories motion took on the character of an integral part of the trial itself. I would adopt the same approach as that of McCracken J and hold that, while normally two Senior Counsel would not be allowed on a motion, in the special circumstances of this case more than one Senior Counsel was allowable. I also consider that, given the certification of the days of trial by Lynch J, the Taxing Master's decision to allow refreshers for all days other than the first day of the trial is the correct one.

The Costs of Discovery

A number of the matters in regard to which the Bula Plaintiffs seek a review of taxation relate to the costs of discovery. Firstly the Bula Plaintiffs argue that under Order 31 Rule 25, in the absence of a Certificate from the Court given at the trial of an action the costs of discovery cannot be allowed as part of the costs of the parties seeking such discovery and therefore the Taxing Master has misdirected himself in allowing such costs. Counsel for Bula refers to Aaron's Reef v Twiss (1892) 30 LR IR 611 where it was held that an application for such a certificate must be made to the Judge who presided at the trial at the time of the trial itself before the Judge leaves the Court or its precincts. In Townshend v Cotter (1893) 31 LR IR 435 it was held that if at the trial no certificate for discovery had been given or applied for, the Court cannot on a subsequent application allowed the costs of such discovery. No such certificate was given at the time of trial by Lynch J.

Order 31 rule 25 provides:

"In every cause, or matter, the costs of discovery, by interrogatories, or otherwise, shall unless otherwise ordered by the Court be allowed, as part of the costs of the parties seeking discovery, either as between party and party or solicitor and client, where, and only where, such discovery shall be certified by the Court of the trial or, if there is no trial, shall appear to the Court, or to the Taxing Master, upon special grounds to be certified by such Taxing Master, to have been reasonably asked for."

It is clear that the aim of this rule is to guard against unnecessary applications for discovery and the resulting unnecessary expenditure in costs. The Tara Defendants submit that this objection is fundamentally misconceived having regard to the facts. On 24 July 1989 the Plaintiffs sought an order for discovery against the Defendants. By consent, an order was made against the Defendants with a cross-order for discovery as against the Plaintiffs. The order of 24 July 1989 failed to recite that a cross-order had been made against the Plaintiffs and accordingly a further order was made by consent on 4 December 1989 correcting the initial order. The Tara Defendants submit that from this summary of facts it is clear that the Plaintiffs were the primary moving party in regard to the discovery application and that Order 31 Rule 25 does not apply where a cross-order for discovery is made against the primary moving party in relation to such discovery.

It appears from the evidence given before the Taxing Master, and from the Taxing Master's rulings, that discovery in this action played a very large part both in the action itself and in the amount of work that had to be undertaken by both Solicitors and Counsel on all sides. At the taxation hearing on Thursday, 4 December 1997 Mr O'Mahony, solicitor, gave a dramatic description of the volume of paper which the various discoveries produced. He said at page 23 of the transcript:-

"The volume of paper is inconceivable unless one went into High Court 3 at any time during the 277 days. The right hand side wall was entirely full up to the ceiling with, or halfway up to the ceiling with Tara documents. We also had Room 8A beside the shop in the Law Society constantly booked for the whole period of the case, over three years, full of paper as well. The Attorney General's Office, so called, beside the Press Room in the Four Courts was entirely full. There was a basement room full of State discovery as well. The Bula discovery occupied the jury box in Court Room 3 and the room upstairs in the corridor on the way up to the jury room, the jury room itself and the whole place was sort of closed in by these documents."

In his ruling on the original taxation of the Tara Bill of Costs given on 25 March 1998 the Taxing Master described the discovery process thus:

"On 24 July 1989 the Plaintiffs successfully applied for an Order for Discovery as against the Defendants and a similar order was made against the Plaintiffs. The discovery provoked further motions and the processes of discovery were indeed onerous and very detailed. The Plaintiffs sought further and better discovery of documents and also sought an order directing the Court to inspect documents on which privilege was claimed. Both the manner and satisfaction of discovery and particulars was protracted and complex for both Defendants and Plaintiffs and further, interrogatories were also sought by the Plaintiffs."

It seems to me that, in the circumstances of this particular trial, it would be lacking in reality to refuse the costs of discovery on account of the absence of a certificate. It is quite clear that, as submitted by Mr Ryan, the discovery process was sparked off by the Plaintiffs and in those circumstances it is common form that a cross-order would also be made against the Plaintiffs themselves. The Plaintiffs were well aware from the beginning that discovery on all sides would be necessary and it seems to me that it would be particularly unjust to permit them to rely on the technical absence of a certificate in order to deny costs of discovery to the Defendants. As I have already said the certificate provision in Order 31 is designed to prevent unnecessary discovery; in this action all parties were at one in agreeing that discovery was essential. In my view the Taxing Master acted correctly and justly in allowing these costs. It also follows that the Taxing Master was correct in allowing the portion of the solicitors' instruction fee and other items which were also objected to by Bula insofar as these relate to the discovery sought by the Tara Defendants. Again the discovery was accepted as being necessary by all parties; the discovery orders were made by consent. Once discovery took place the materials discovered had to be perused, sorted and organised by the solicitor, who had to take instructions from his clients in regard to these papers and pass on instructions to Counsel. Given the enormous amount of documents discovered, this must have formed a large part of the solicitors' work in managing the case. I would agree with the Taxing Master in allowing these costs and in overruling the Bula Plaintiffs' objection. The third matter which is raised by the Bula Plaintiffs in connection with discovery is that a number of affidavits of discovery were initially sworn by the various Defendants in the mistaken belief that they did not have documents which were discoverable under the terms of the order for discovery. It was subsequently realised that they were mistaken and further affidavits were sworn, corrective of their mistake. The Bula Plaintiffs submit that on a party and party taxation any costs which had been incurred or increased as a result of mistake cannot be allowed.

Order 99, Rule 37(18) provides that:

". . . No costs shall be allowed which appear to the Taxing Master to have been incurred or increased through over-caution, negligence or mistake . . ."

In my view the wording of this rule allows a degree of discretion to the Taxing Master. In a lengthy and complex trial such as this, where there is a prolonged period of discovery, cross-discovery and farther and better discovery a situation is almost bound to arise where certain of the earlier affidavits of discovery contain mistakes of omission which have to be rectified at a later stage. In his ruling on the objections (at page 49) the Taxing Master expressly stated that he exercised his discretion in allowing the costs of these affidavits despite the fact that they were based on mistake. Under Section 27 of the 1995 Act I would have to find that he exercised his discretion in an unjust manner in order to over-rule his decision. In the context of the discovery in this case I cannot find that his exercise of his discretion in this matter was unjust.

One farther matter raised by the Plaintiffs arises in the context of discovery. This is the hire of a Law Society room in the Four Courts for the purpose of storing some of the voluminous documentation connected with the trial. It is to be presumed that the majority of this documentation arose from the discovery made by the parties. The extent of this documentation was described in the evidence given by Mr O'Mahony, Solicitor, to the Taxing Master as quoted above. It was also described at length by the Taxing Master himself in his rulings. In addition the learned trial judge, both in dicta during the trial and in his final judgment, expressed his reservations regarding the volume of documentation, much of which he considered likely to be irrelevant to the final issues in the trial.

However, the documentation was in existence and different parts of it were needed at different times in the trial. (See further the evidence of Mr O'Mahony). It had to be stored somewhere, and all free space in and around the courtroom was apparently already full. One cannot envisage a situation where a room full of documentation of this kind could be physically moved up and down from the Defendant solicitors' office on each of the 277 days of the trial.

Mr Dempsey submits that the hire of the Law Society room was a luxury and thus was not permitted under Order 99 Rule 37(18). In many cases this might be so, were a room to be hired simply for the convenience of Counsel and Solicitors. In this case, however, on the evidence before the Taxing Master and consequently before me, the storage room was an absolute necessity and could well be said to be essential to the Defendants being able to mount a proper defence against the varying allegations made by the Plaintiffs. I will, therefore, uphold the decision of the Taxing Master to allow the expense arising from the hire of the room.

Solicitors' Instructions Fee

The final major item raised by the Bula Plaintiffs in their Motion to Review is the quantum of the solicitors' instructions fee which was fixed by the Taxing Master as against Bula at £1,513,650. The Taxing Master also fixed a solicitors' instruction fee as against the Roche Plaintiffs of £732,650. Effectively these were the fees sought by the Defendants. The Plaintiffs submit that the Taxing Master did not at all exercise his discretion in regard to the fees claimed but simply accepted the figures put forward by the Defendants. The Plaintiffs also draw attention to what they claim is an anomaly in the Taxing Master's method calculating the fee as an annualised sum. At page 31 of the Taxing Master's ruling on the objections carried in by the Plaintiffs (9 July 1998), the Master states:

"Furthermore, looking at the amounts allowed in the context of the case it represents an amount to averagely remunerate the solicitors for all the work done on a yearly basis as:-

1. £91,581 per annum and

2. £151,365 per annum respectively.

By all accounts these amounts are reasonable in the extreme having regard to the continuous yearly input of the solicitors involved".

It should be said that the larger of the two sums applies to the Bula Plaintiffs, who submit that if the average remuneration of £91,581 per annum was reasonable in respect of the costs incurred against the Roche Plaintiffs then it could not be reasonable to charge £151,365 per annum as against the Bula Plaintiffs. This reasoning, they say, is fundamentally flawed and requires re-consideration.

When assessing the proper level of instruction fee for a solicitor the Taxing Master must exercise his discretion in accordance with Order 99, Rule 37(22)(II). This Rule provides as follows:-

"In exercising his discretion in relation to any item, the Taxing Master shall have regard to all relevant circumstances, and in particular to:-

(a) the complexity of the item or of the cause or matter in which it arises and the difficulty or novelty of the questions involved;

(b) the skill, specialised knowledge and responsibility required of and the time and labour expended by, the solicitor;

(c) the number and importance of the documents (however brief) prepared or perused;

(d) the place and circumstances in which the business involved is transacted;

(e) the importance or the cause or matter to the client:

(f) where money or property is involved, its amount or value;

(g) any other fees and allowances payable to the solicitor in respect of other items in the same cause or matter but only where work done in relation to those items has reduced the work which would otherwise have been necessary in relation to the item in question."

This Rule was considered by the learned Barron J in Best v Wellcome Foundation Limited [1996] 1 ILRM 34. At page 43 of the Report the learned Barron J, having quoted the rule, goes on to say:-

Ultimately, there are only three criteria upon which the fee is determined:

(1) Any special expertise of the solicitor;

(2) The amount of work done,

(3) The degree of responsibility borne.

An analysis of the separate paragraphs of the rule bears this out. Paragraph (a) suggests that in the circumstances contemplated in that paragraph, the amount of work to be carried out by the solicitor will be increased. The basis of paragraph (b), is the same. The skill and specialised knowledge of the solicitor is the important factor in paragraphs (b) and (c). The amount of the damages is in effect the factor involved in paragraphs (e) and (f). It is clear, however, from paragraph (g) that a solicitor should not be compensated under two separate headings for the same work."

Under the Courts and Courts Officers Act 1995 Section 27 sub-sections (1) and (2) the Taxing Master is given power inter alia to examine "the nature and extent of any work done or services rendered or provided by a solicitor" and also to allow in whole or in part "any costs, charges, fees or expenses included in a Bill of Costs . . . in respect of a solicitor . . . as he or she considers in his or her discretion to be fair and reasonable in the circumstances of the case."

The Taxing Master in his original ruling gave very lengthy consideration to the work done by the solicitors throughout the entire period of these proceedings. It is clear that the nature and complexity of the work created a considerable impression on his mind, since he repeatedly stresses the immense difficulties which were faced by the solicitor in defending a case containing such a large number of variable allegations. He also greatly stresses the amount of paper work involved. I have already held that the paper work aspect which arose from the discovery is an allowable cost, and I would agree with the Taxing Master that the burden of dealing with the documentation was indeed a very great one. This was particularly so in regard to the handling of the documentation in the discovery which I have already dealt with above.

In the light of the criteria set in Best v Wellcome it must certainly be admitted that the solicitor for the Tara Defendants had to undertake an enormous amount of work over the long period during which this case was extant. Given the size and complexity of the documentation and given the numerous and varying issues that were involved the case required special expertise by way of management from the solicitor. The solicitor also bore very heavy responsibility; a favourable outcome in the case was vital to the whole mining operation of the Tara Defendants and it was also vital to their business to defend themselves against the numerous and serious allegations made by the Plaintiffs.

Very few cases would be comparable to this one in scope, complexity, and sheer prolonged hard work. It seems to me that the nearest comparison in recent years in the field of costs is the case of Minister for Finance v Goodman in which the learned Laffoy J gave judgment on 8 October 1999. In that case the solicitors for the Goodman companies had calculated the instruction fee on an hourly basis and the learned Laffoy J considers the hourly rates charged in detail. She concluded that the instruction fee contained in the bill of costs and approved by the Taxing Master was too high and fixed the solicitors instruction fee at £2,500,000. While the Learned Laffoy J, for a number of reasons, stated in her judgment that she did not feel that the Bula case was an appropriate comparator for the representation of the Goodman companies before the Beef Tribunal when making her calculations on the hourly fee allowable, it seems to me of interest, nevertheless, that the end result of her calculations at £2.5 million is not very far removed from the sum of the instruction fee as against the Bula Plaintiffs and as against the Roche Plaintiffs at £2,246,300. The nature of the work carried out by the Goodman solicitors during the course of the Beef Tribunal was very different but it was comparable in sheer amount and onerousness. It was also comparable in the degree of responsibility borne. In my view, therefore, the instruction fee allowed by the Taxing Master as against the Bula Plaintiffs at £1,513,650 is not unjust.

Witness expenses etc

The remaining matters raised by the Bula Plaintiffs in their Motion to Review concerned witness expenses and a number of miscellaneous items. All of these matters have been dealt with by the Taxing Master at some length both in his original ruling of 25 March 1998 and his ruling on the objections on 9 July 1998. As regards the expenses of a number of these witnesses, while objections were made to the level of the expenses allowed by the Taxing Master, no specific evidence was brought by Bula to show that their presence was outside the directions of Counsel, or that a solicitor acting reasonably carefully and reasonably prudently in the course of his practice would not have made such a disbursement. Order 99 rule 37(a) provides for the taxation of disbursements for witnesses expenses. It states where relevant as follows:-

"Such reasonable charges and expenses as appear to have been properly incurred in procuring evidence and the attendance of witnesses are to be allowed. In respect of any witness the Taxing Master may allow by way of travelling expenses the actual costs of transport by hired motor car when it is demonstrated to him that such hire or use did not exceed the costs of travel by available transport or otherwise resulted in a saving to the party chargeable. The reasonable expenses and allowances of witnesses to attend a consultation or conference properly held prior to the trial shall be chargeable to taxation as between party and party."

In Kelly (An Infant) v Hoey (unreported High Court Butler J December 1973) Butler J stated, in relation to witnesses expenses:

"It seems clear to me that prima facie any witness whose attendance is directed by Counsel in his advices on proofs is a necessary witness. Similarly I think it clear that if in preparing the case of a Court, Counsel directs that any expert or technical opinion, advices or information be sought the procuring of this is prima facie necessary although the attendance of the particular witness may not be ultimately directed. The party opposing the Bill may no doubt be able to show that these items were unnecessary or superfluous but unless he does so they should be allowed."

In Staunton v Durkan [1996] 2 ILRM 509 it was held by Blayney J that the question which must be determined by the Taxing Master, and the Court on appeal, is whether no solicitor acting reasonably carefully and reasonably prudently in the course of his practice would have made such a disbursement.

The case of each witness was given detailed and careful consideration by the Taxing Master and the decision reached by him was, I consider, within his discretion and was not unjust. This, in my view, is the situation in regard to the expenses of Dr Malcolm Scobie, Dr David McCabe and Dr M Terezopoulos, and I would reaffirm the decision of the Taxing Master in regard to these three witnesses. The same situation in general applies to Mr Jeremy Cooke, although in his case it must be observed that at the objections stage the Taxing Master disallowed his expenses as against the Roche Plaintiffs and allowed the sum of £14,960 as against the Bula Plaintiffs. This sum was fixed by the Taxing Master after hearing submissions from both sides and I have no specific evidence upon which to base a finding that it was unjust.

As regards Ms Clare Hassell of Brook Hunt, Mining and Metal Industry Consultants, the Bula Plaintiffs in their written submissions to this Court continued to object to her being paid two days expenses. In point of fact the Taxing Master in his objections ruling (at page 48) reduced her expenses to an allowance for one day only. This meets the claim of the Bula Plaintiffs.

The Plaintiffs also raised objections as to the fees allowed to Messrs Price Waterhouse, Accountants, in respect of work carried out on behalf of the Tara Defendants, in particular in the preparation of financial models and on the adaptation of other financial models put forward on behalf of the Plaintiffs by Messrs Arthur Anderson, Accountants. The Taxing Master in his original ruling went into this matter at length (pages 139 to 147) detailing the work done, the personnel employed and their position in the firm, the hourly rates charged by each individual, etc. At page 147 he concluded:-

"The amount claimed in respect of the work that was done by Price Waterhouse has been fully vouched and a breakdown of the rates and hours has been furnished. There has been no question as to the actual work nor the relevance and the Plaintiffs did not wish to question the actual accounts. The Plaintiffs did question the rates but in respect of the work that was done I consider that the actual rates are fair and reasonable having regard to the circumstances of the case. Accordingly I allowed the amount as claimed and vouched, ie, £247,388."

In his objections ruling he reconsidered the same issues and rejected the objections. While some of the hourly charges of the more senior personnel at Price Waterhouse are on the high side of normal, I would accept the Taxing Master's comment that:-

"The particular area of work is complex and difficult in that it encompasses models in relation to individual leases and portfolios of leases and are sensitive to the particular criteria upon which the model is designed"

I therefore again consider that the Taxing Master's decision was within the bounds of his discretion, was based on a careful consideration of the evidence, and was not unjust.

The Bula Plaintiffs also raise objections to the allowance of expenses for the attendance of two accountants -- Mr Redmond and Mr Clarke -- of Messrs Ernst & Whinne, Chartered Accountants, to hear the evidence of both Mr Byrne and Mr Gallagher of Arthur Andersen, Chartered Accountants, who were witnesses called on behalf of the Bula Plaintiffs in April and May 1996. The Bula Plaintiffs submit that, as overnight transcripts were being obtained by the Tara Defendants, a copy of the transcript in relation to the evidence of Mr Byrne and Mr Gallagher could have been famished and this would have been sufficient. Of the two accountants only Mr Redmond actually gave evidence.

In this regard the Taxing Master in his ruling of 25 March 1998 stated (at page 149);

"There is no difficulty with the charge out rate and it is therefore unnecessary to look at this element of the charge. The question upon this charge is was it necessary to have both Mr Redmond and Mr Clarke at Court to hear the evidence. The Plaintiffs have suggested that they would have been properly equipped had they read the overnight transcript and accordingly, their attendance in Court would have been unnecessary. However, reading transcripts do not give one the feel for the evidence nor the impression that it is made upon the Court. Both accountants in this matter had different areas of specialisms. Mr Clarke was concerned with the taxation aspects, whereas Mr Redmond dealt with the due diligence aspect. Consequently, and as directed by Counsel, their attendances were necessary and having been provided with the evidence of the charges I consider these reasonable."

Any Judge who has heard cases in which accountancy evidence, and in particular complex accountancy evidence, is presented will be familiar with the practice of each party having their own accountant present in Court to hear the evidence of the opposing party's accountant. This arises frequently and the reasons for it are obvious. The presence of the accountant can be of very considerable assistance to Counsel in meeting the case made against his client. I would agree with the Taxing Master's opinion that a study of an overnight transcript would be no substitute for this immediate presence and I would support his ruling.

Finally, the Bula Plaintiffs object to the expenses allowed to Mr John Tully, which the Taxing Master allowed at a rate of £500 per day for 267 days. Mr Tully was in an unusual position in that he was a solicitor by profession, a witness in the action, and also a Defendant in the action.

Mr Dempsey, Senior Counsel for the Bula Plaintiffs, submitted that at least a portion of Mr Tully's expenses were incurred or increased through over caution. In particular he suggested that Counsel required Mr Tully's presence primarily to listen to the evidence of Mr Michael Wymes. Although Mr Wymes' evidence did last for a very substantial number of days there was also a very substantial number of days over the trial period when Mr Wymes was not giving evidence. Mr Dempsey referred to the judgment of Bert MR in London Scottish Benefits Society v Chorley (1884) QBD 872 where it was held that:

"When an ordinary party to a suit appears for himself he is not indemnified for loss of time; but when he appears by solicitor, he is entitled to recover for the time expended by the solicitor in the conduct of the suit. When an ordinary litigant appears in person, he is paid only for costs out of pocket. He has to pay the fees of the Court, that is money paid out of pocket; but for loss of time the law will not indemnify him."

Mr Dempsey submitted that the Taxing Master had treated Mr Tully as a professional witness throughout the 267 days when he was present, while in fact for much of that time he was present in his character as a Defendant, and on a party and party basis he ought to have been paid only his actual out of pocket expenses.

Senior Counsel for Tara, Mr Ryan, submitted that the fact that a witness of fact is a professional person is a consideration in determining his expenses and such a witness is entitled to be compensated for loss of time. He referred to the case of McNinch v Donnan 26 ILT and SJ 611 where Andrews J stated:

"The law with regard to compensation seemed clearly to show that a broad distinction was recognised between different classes of witnesses compensation for loss of time might be allowed to witnesses who were properly called professional."

Mr Ryan also pointed out that Mr Tully as a Defendant had a right to be present on every day of the trial. He had not looked for his costs as a Defendant and as a matter of justice he should be paid his full expenses for attending.

The Taxing Master, in dealing with the claim for Mr Tully's expenses, held in his ruling of 25 March 1998 (at page 132) as follows:

"Mr John Tully, the twelfth named Defendant and Secretary of the first named Defendant company is the only remaining executive of the company and given the nature of this case a witness of essential importance for the Defendants to the action. Mr Tully completed some six or seven affidavits which were indeed detailed and lengthy, for which there is no claim whatsoever for the obviously time consuming effort invested in completing these extremely complicated and technical affidavits of fact. He gave evidence over four days in the High Court. Initially, he was the Secretary and in-house solicitor to the company from 1967 to 1988. Post-1998 Mr Tully continued as Secretary to the company and in tandem commenced private practice. He played an active and positive role throughout the various negotiations and given the pivotal and central character of his activities for and on behalf of the company and his knowledge and participation in this epic saga was of biospheric proportions and essential to the case."

He discusses the position of Mr Tully as a witness of fact and then goes on to say (at page 134):

"This is the position of the witness of fact within the litigious process as opposed to an expert witness because the witness is giving his version of events as he sees it. However, Mr Daly has apparently overlooked the fact that Mr Tully was also a party to the action and had the Plaintiffs wished to save on expense they could very well have left Mr Tully out of the proceedings at the very start. If the other Defendants had objected then they would have been responsible for the costs f the Plaintiffs pushed for his departure from the action. When the cause ceases, the effect ceases."

It appears to me that in the Taxing Master's discussion of the expenses of Mr Tully there is a certain degree of confusion between his role as a Defendant in the proceedings, his role as a witness, and the fact that he is a solicitor by profession.

Firstly, he is a Defendant in the proceedings. It does not appear to have been argued at any stage of the proceedings that he was not a proper Defendant, and if he was a proper Defendant there is in my view no basis for the Taxing Master's suggestion that the Plaintiffs could have saved expenses by leaving Mr Tully out of the proceedings at the very start. Indeed, the Taxing Master's own description of Mr Tully's "biospheric" role in Tara would confirm that he was a proper party to the action. Mr Dempsey is, I consider, correct in arguing that in his role as Defendant Mr Tully could seek only actual out of pocket expenses as opposed to compensation for loss of time or professional loss.

Mr Ryan, for Tara, seems to be arguing for some sort of setoff; Mr Tully did not claim his costs as a Defendant and therefore should get his expenses. It seems to me that there is no basis for this suggestion. Mr Tully is one of the group of Tara Defendants. As such he, as part of the group, was fully represented at the trial by solicitor and by three eminent Senior Counsel and also Junior Counsel. As part of the group he has sought and has been awarded his costs of the proceedings, which, in common with the other Tara Defendants, he taxed and is even now endeavouring to recover. There was never any question of his being separately represented and incurring legal costs of his own which he waived or otherwise did not claim.

The Tara Defendants have a right to claim Mr Tully's expenses solely in his character as a witness. He was a witness of fact as opposed to being an expert professional witness brought into the trial specifically for his expertise. However, I consider that he is entitled to compensation for his loss of professional time, though not to a special fee for his expertise. It seems to me that the £500 per day is a reasonable amount to cover his loss of time and possible loss of business.

He should be allowed this figure for the four days on which he himself gave evidence, In addition it appears that Counsel directed that Mr Tully should be present when Mr Wymes was giving evidence. Given the history of Mr Tully's long term involvement in the dispute this is a reasonable direction by Counsel and again Mr Tully should be allowed his expenses for the days of Mr Wymes's evidence. I accept, however, that the Bula Plaintiffs are correct in submitting that he should not be allowed expenses for the other days of the trial. If he came there in his character as a Defendant he can recover only his share of the common costs of the Tara Defendants; if he came in his character as a witness then his presence on the days on which neither he nor Mr Wymes were giving evidence can only be regarded as over-caution or luxury.

Since the details of the number of days on which Mr Wymes gave evidence are not available to this Court, the matter of Mr Tully's expenses must be returned to the Taxing Master to recalculate on the basis which I have set out, at the rate of £500 per day.

As far as the other miscellaneous expenses such as stenographers' fees raised by Bula in their objections are concerned, I would uphold the costs allowed by the Taxing Master.

Motion to Review State Parties' Costs

I now turn to the motion brought by the Bula Plaintiffs to review the bill of costs of the State Parties (the Minister for Energy and Michael O'Connell) as measured by the Taxing Master. A number of the issues which arise on this Motion to Review are the same as or closely similar to the issues with which I have already dealt in the context of the Tara Defendants bill of costs. In these instances I do not propose to deal once again with the matters in detail, but simply to refer back to my discussion of the Tara Parties bill of costs.

By way of introduction to his ruling of the 25 March 1998 on the State Solicitor's Instruction Fee, the Taxing Master discussed the principles which lay behind his measurement of the State's costs (pages 24 to 35 of his ruling). At page 26 he stated:

"There appears to be a line of thinking that the State in litigation should perform in a more economical fashion than its private counterparts and this philosophy is indeed baseless and as such does not, in my respectful opinion, need to be elaborated. It would be wrong if the State would consider price before calls, in fact, it would be wrong for anyone to have this as their guide because the very strength of the law is an indiscriminate pursuit of justice.

The office of the Chief State Solicitor is a public office and therefore accountable to public judgment. The instant matter was a very protracted action and was by all accounts a drain on the available services in that the other services had to give way because of the magnitude of this case. In fact the case was as close as one could possibly get to Lord Bowen's critical depiction of the Chancery Courts of old -- no man, as things now stand can enter into a Chancery suit with any reasonable hope of being alive at its termination, if he has a determined adversary: 'progress in the administration of justice during the Victorian period.'"

At page 31 the Taxing Master continued:

"The State requires a solicitor to be permanently and exclusively retained on its he half and during the currency of his office he may not act in any other capacity than as Chief State Solicitor who is a Civil Servant. The expense of this office is borne by the State. However, notwithstanding that the expenses are covered by the State, if a Ministerial Department is awarded its costs then those costs may be recouped from the party against whom the costs have been awarded. The taxpayer, who is the financier of the State, is essentially reimbursed for the expenditure on the case or matter which has appropriated funds that were at the State's disposal."

At page 34 he concluded:

"In order to finance a case that exceeds the budgetary limits of a Department that are distinctly applicable to the immediate exigencies of the case, the Government must make available finance; this may exceed its reckonable costs. There is not, nor has there ever been in a Parliamentary democracy, a bottomless well from which the State may take at will its necessary running costs. Costs are controlled and are patrolled by Governmental Committees. Every tax, however permanent its character, is practically for the service of the current year so long as it continues to be levied. The resources of the Chief State Solicitor's Office that were expended on this case may be adequately reimbursed and consequently the budget thus deficient may properly be replenished and it is the impact that this has on the taxpayer that is the yardstick, not the obligations of the State in having to provide an office. The costs that are claimed are not profit costs but costs directly and properly incurred in this litigation. Accordingly, profit costs as such do not apply in the case of the Chief State Solicitor but rather the assessment of the reasonable and necessary costs incurred in the litigation . . ."

In general terms I would accept the principles set out by the Taxing Master in his ruling. The costs awarded are party and party costs and as such must be gauged by the normal rules applicable to that class of costs, but they should not be pared back or reduced simply because the Office of the Chief State Solicitor is an organ of the State.

As in the case of the Tara Defendants, the Bula Plaintiffs' claim that the concurrent taxation against both the Roche Plaintiffs and themselves created confusion and the danger of duplication. As I have already set out in my decision on the judicial review proceedings. I consider that the Taxing Master had no choice in applying this method due to the nature of the cost orders made by the learned Lynch J. However, I reiterate that it seems to me that there is at least some danger of duplication, and the Taxing Master should continue his system of monitoring by affidavit to make sure that this does not occur. At the very least it should be made clear both to the Taxing Master and to the Plaintiffs exactly what elements in the State's bill of costs against the Roche Plaintiffs are covered by the compromise reached between the State Defendants and the Roche Plaintiffs. The same should, of course, apply in regard to the compromise between the Tara Defendants and the Roche Plaintiffs.

As far as any matters concerning discovery are concerned, I have already dealt with all of these issues in regard to the Tara Defendants bill of costs, I see no reason to differentiate between the Tara Defendants and the State Defendants in the context of discovery. Accordingly I uphold the Taxing Master's decisions on discovery. The same position applies in regard to the refreshers paid to Counsel during the course of the trial and in regard to disbursements in connection with consultation room hire and stenographers' fees.

The Bula Plaintiffs have raised objection to the quantum of brief fees allowed to Counsel for the State. The State employed two Senior Counsel and one Junior Counsel. The fee claimed was at the rate of £63,000 for each of the Senior Counsel and a proportionate fee for Junior Counsel. The Bula Plaintiffs point out that this is a higher brief fee than that paid to the Tara Senior Counsel, apart from Mr Clarke. They submit that one must have regard to the reduced number of issues faced by the State compared to the issues faced by the Tara defendants and also to the fact that Tara Defendants' Counsel were acting for numerous different parties, whereas the State Defendants' Counsel were effectively acting for one party. They point out that the briefing papers to the Tara Defendants comprised 86,426 pages, or 432.134 folios, whereas the papers making up the State Counsel's brief comprised 273,700 folios. It is true that the State Defendants faced fewer issues (insofar as it was clear what issues they faced) than the Tara Defendants. They were nonetheless issues of great importance, and arose in a trial that was equally long for all parties. The State Counsel's brief fee lies roughly half way between that paid to Mr Clarke and that paid to the two other Tara Counsel. Given the very large amount of actual work involved and the complexity of the issues. I consider that the Taxing Master's decision on the brief fees of Counsel was not unjust.

The Bula Plaintiffs also seek a review of the quantum of the solicitors' instructions fee allowed by the Taxing Master. Counsel for Bula submitted that the State Defendants' solicitor received considerable assistance throughout the proceedings and the trial from "documents Counsel" and certain of the witnesses who carried out or assisted in many of the functions which would normally fall to be carried out by a qualified solicitor. In addition throughout the Instructions Fee Statement there were numerous references to the many man hours being spent in searching for and collating documents. This work was not conducted by the solicitor but by other officials within different State Departments.

The submission with regard to the work of officials in various State Departments seem to me to be based on the all too common misconception that such work is cost free. On the contrary, each hour of a Civil Servant's time is financed by the generality of taxpayers and a Civil Servant's work should in budgetary calculations be costed, just as the hours of work of an executive in a private company are costed. The Chief State Solicitor clearly does not directly pay for these officials' work from his own budget, but his client (the State) does, and therefore in my view no injustice is done if the State through the means of the solicitors' instructions fee is permitted to recoup such costs, provided they are necessary to defend the State in the relevant litigation. The budgetary aspect of the State's commitment to this lengthy and complex litigation was fully considered by the Taxing Master in his ruling of 25 March 1998 (see extract quoted above) and I accept his reasoning. It is suggested that the Taxing Master did not exercise any discretion in assessing the State Solicitors' instruction fee. Section 27(1) of the Courts and Court Officers Act 1995 provides as follows:-

"On a taxation of costs as between party and party by a Taxing Master of the High Court the Taxing Master shall have power on such taxation to examine the nature and extent of any work done, or services rendered or provided by Counsel (whether Senior or Junior), or by a solicitor, or by an expert witness appearing in a case or any expert engaged by a party, and may tax, assess and determine the value of such work done or services rendered or provided in connection with the measurement, allowance or disallowance of any costs, charges, fees or expenses included in a bill of costs."

It is clear from the lengthy consideration both of the principles underlying the payment of costs to the State and of the actual work done by the Chief State Solicitor contained in the Taxing Master's ruling of 25 March 1998 that he did in fact exercise his discretion. The exercise of discretion need not invariably lead to the reduction of fees claimed. The instruction fee allowed, at £1,265,000, was a little over one half of the instruction fee allowed by Laffoy J in The Goodman/Beef Tribunal case and in the circumstances I do not consider it to he excessive or unjust.

The Bula Plaintiffs also object to the employment of a Junior Counsel to act as "document Counsel". In the main, this was objected to as being "a luxury". In many cases the employment of a separate Counsel to peruse and organise documents and to produce the relevant documents when necessary would indeed be a luxury. In the ordinary run of cases this would be the task of the instructing solicitor and of Junior Counsel. In this particular case, however, the volume of documentation was many times greater than normal and the employment of a separate Junior Counsel at what was, indeed, a moderate fee to undertake this task was more a necessity than a luxury. The Taxing Master, having examined in some detail the work involved and heard evidence in regard to it, allowed this expenditure. I do not consider that he acted unjustly in so doing.

The Bula Plaintiffs remaining objections referred to witnesses' expenses allowed for Mr Holloway, Mr Scannion, Mr O'Leary and Mr O'Connell, in particular in regard to the reading of the transcripts of the trial. These witnesses were retired Civil Servants who had been involved in the history of the Bula/Tara dispute and who had specialised knowledge of the State's role in the whole matter. Counsel for Bula submitted that this expenditure was simply to enable the State Defendants to conduct the litigation more conveniently and that they were special fees or unusual expenses which ought not to be allowed on a party and party basis. The State's response to this submission is that leading Senior Counsel provided written advices on proofs prior to trial directing the attendance of these witnesses and this was later confirmed by both Senior Counsel in lengthy conferences which took place prior to the commencement of the trial. Consultations with Mr Scannion and other witnesses during the course of the trial were required on a number of occasions to deal with matters which arose afresh during the evidence of the Plaintiffs. Furthermore it was essential, and was directed by Counsel, that these witnesses read transcripts of the evidence as otherwise it would have been necessary for them to attend Court to hear the evidence.

It is well established that where Senior Counsel directs the attendance of a witness that that witness is a necessary witness and his or her expenses must be met. The expenses involved in reading transcripts is less than that of continual attendance at Court and I do not consider that the Taxing Master erred in allowing these expenses.

In summary, therefore, I do not find any fault with the Taxing Master's assessment of the costs of the State Defendants as against the Bula Plaintiffs.