High Court of Ireland Decisions

1. This is a review of taxation brought by Farrell Grant Sparks under the provisions of Order 99 Rule 38 of the Rules of the Superior Courts to review the taxation by Taxing Master Flynn as to the items on the bill of costs of the second Defendant Colour Books Limited prepared pursuant to an Order of the High Court dated the 24th of October 1997 in respect of which objections were carried in on taxation and in particular as to the following items and/or as to the amounts thereof namely the Brief fees of Senior Counsel and Junior Counsel and Brief fees and Solicitor’s professional fees in relation to the briefing of a second Senior Counsel, second Senior Counsel’s refreshers and consultation fees and further the refresher fees allowed to Senior and Junior Counsel in respect of the day of the 24th of October 1997 and furthermore the Solicitor’s general Instruction fee.

2. In the proceedings between John Harold and Chris Jameson, Mr Harold brought a claim for £180,000 on the basis that these monies were due and owing by Mr Jameson to the Plaintiff in respect of the sale by the Plaintiff to the Defendant of the Plaintiff’s shares in Colour Books Limited. It appears from the Statement of Claim in those proceedings that the sum of £180,000 was stated to be a balance due of a total consideration of £550,000 based upon an agreement between the parties alleged to have been made in December of 1991. In his defence it was pleaded by Mr Jameson, having denied the existence of an agreement as alleged or that any sum was due under it, that if an agreement was entered into between the parties, the Defendant would object that the agreement referred to in the Statement of Claim was void for illegality and that its enforcement would be contrary to public policy in that its execution was obtained by the Plaintiff for the purposes of (1) defrauding the Revenue Commissioners by deceiving them as to the true nature of the terms of the agreement and (2) contravening Section 60 of the Companies Act 1963 by reason of the Company giving financial assistance whether direct or indirectly for the purchase of shares in the said Company. In replies to particulars in those proceedings it was stated by the Defendant that the payment was effected by means of a series of artificial transactions advised by Messrs Farrell Grant Sparks advisors to the parties and to Future Print Limited which it was claimed had solely as their object the avoidance by the Plaintiff of Revenue liabilities having no commercial purpose.

3. These first proceedings led to the commencement of the second set of proceedings referred to in the title hereof between Christopher Jameson and Future Print Limited as Plaintiffs and John Harold, Colour Books Limited and Sicilian Estates Limited as Defendants. In these proceedings the Plaintiff sought a declaration that the said acquisition agreement between Mr Jameson and Mr Harold and also involving Future Print Limited, Colour Books Limited and Sicilian Estates Limited was in breach of Section 60 of the Companies Act, 1963. Further relief sought in those proceedings was an Order declaring the agreements in question to be void and for an Order for recision of the agreements. The Plaintiffs in those proceedings also sought an Order requiring Mr Harold and Colour Books Limited to pay to the second Plaintiff Future Print Limited the sum of £373,000. This was the sum alleged to have been paid by the second Plaintiff to the second Defendant on foot of the agreement in question. The essential claim in those proceedings is that the agreements entered into between the parties were contrary to the provisions of Section 60 of the Companies Act, 1963 in that each amounted to the provision of financial assistance for the purpose of and in connection with the purchase of the first named Defendant’s shares in the second named Plaintiff. It was pleaded further in these proceedings that the agreements in question were voidable at the instance of the second named Plaintiff.

4. These two sets of proceedings were consolidated by Order of the High Court made in 1995. In the latter proceedings the Defendants filed a full defence denying the Plaintiffs claim. In the course of its defence it was pleaded inter alia on behalf of Colour Books that it was unaware of facts in relation to the transactions it might have entered into with the Plaintiffs in those proceedings or any other parties that did or would have constituted transactions which would be in breach of Section 60 of the Companies Acts, 1963 or at all. It was further pleaded that if any sums were due by Colour Books to Future Print that Colour Books was entitled to recover from Mr Jameson these monies and any interest thereon together with the costs of the proceedings or alternatively to be indemnified in respect of such matters. Colour Books maintained a counter claim as against Mr Jameson in this regard. Thereafter Colour Books was granted liberty to issue and serve a Third Party Notice on the partners of Farrell Grant Sparks Chartered Accountants and Mr Patrick White Solicitor. The claims against these third parties was on the basis of alleged professional negligence on their part in the furnishing of accountancy, taxation, general financial and/or legal advice in relation to transactions pursuant to which monies were paid to Colour Books Limited and which the Plaintiffs sought to recover.

5. Arthur Cox Solicitors entered an appearance on behalf of the partners of Farrell Grant Sparks and thereafter defences were entered on behalf of those third parties by Arthur Cox and a separate defence was entered on the part of Mr Patrick White by his Solicitors. Notice of trial was served on these proceedings on the 11th of December 1996. On the 23rd of June 1997 further particulars were furnished on behalf of the Plaintiffs Christopher Jameson and Future Print Limited on the other parties in the proceedings furnishing further particulars of loss and damage alleged to have been suffered as a result of the negligence, breach of contract and breach of duty of the Defendants. Under the heading of payment of £250,000 to Colour Books Limited in 1989 a claim of £464,415 was notified involving the principle in the sum of £250,000 and interest in £214,415. Under the heading of Consultancy payments to Colour Books Limited in 1989 a sum of £199,747 was indicated being as follows: principle £133,242 and interest £76,505. Thirdly under the heading payments to professional advisors 1989-1993 a claim was put forward in the sum of £78,773 to include a principle sum of £49,780 and interest in the sum of £28,993. Fourthly particulars were given of a claim for interest paid on late taxes in the period 1989-1995 in the principle sum of £505,595 together with interest in the sum of £351,761 giving a total of £854,356. Further particulars were given of loss under the heading of loss of customers to Colour Books which was quantified in the sum of £386,640, loss of staff to Colour Books tax liabilities including penalties and interest, loss of profits due to absence of restraint of trade, and furthermore, a claim was put forward for mental stress, anxiety and loss of business.

6. On the 23rd of October 1997 the proceedings between the various parties were compromised and a settlement agreement between the parties was received and filed in court. Under the terms of the settlement it was agreed inter alia that Farrell Grant Sparks would pay damages to Christopher Jameson and John Harold together with costs of each of these parties including reserved costs and that they would furthermore pay the costs of Colour Books including reserve costs, all such costs be taxed in default of agreement. It appears that a contribution was received on behalf of the second Notice Party in favour of Farrell Grant Sparks as part of the settlement of this action.

7. The second Defendant Colour Books submitted a bill of cost in the sum of £189,943.49 which was the subject matter of taxation by Taxing Master Flynn. The items at issue are items 361 being the Brief fee of Senior Counsel; the extent of which the Brief fee marked was £21,000 and that allowed by the Taxing Master was £17,500. Item 362 which was a Brief for a second Senior Counsel in respect of which similar Brief fees were marked and allowed by the Taxing Master at the request of the first Senior Counsel and the Brief fee for Junior Counsel which is a pro rata sum to that paid to Senior Counsel on the basis of an allowance of two thirds of the sum allowed to Senior Counsel. A further issue is the refresher fee payable to the second Senior Counsel and associated fees. Furthermore what was in issue were items 390, 391, 392 and 394 which are refresher fees paid to counsel in respect of the day of the 24th of October 1997. On this date the High Court ordered on consent that the settlement agreement be received and filed with the Order of the High Court made that date. The settlement in question is dated the 23rd day of October 1997. The further item in dispute is the Instruction fee for the second Defendant Colour Books Limited which was sought in the sum of £185,000 and allowed by the Taxing Master in the sum of £145,000.

8. The initial taxation of the costs in these proceedings took place before Taxing Master Flynn on the 17th and 18th day of December 1998. The Court has been furnished with the transcript of those proceedings. The Taxing Master issued his ruling on the 2nd of March 1999. In the course of his ruling the Taxing Master indicated that Mr Kennedy who appeared for Farrell Grant Sparks had submitted that Colour Books were “simply a shadow party” in these proceedings. It appears that while they were separately represented that Mr Kennedy on behalf of Colour Books pointed out that the beneficial owners of that Company were John Harold and his wife. The Taxing Master concluded, insofar as some of the allegations made against the second Defendant Colour Books encompassed (1) defrauding the Revenue Commissioners by deceiving them as to the true nature of an agreement and (2) contravening Section 60 of the Companies Act, 1963 to 1990 by reason of the Company giving financial assistance whether directly or indirectly for the purchase of shares, that these allegations were serious and required quite an extensive amount of work to meet a defence thereto. He points out that Section 60 is a legal minefield even for the practising lawyer. The Taxing Master points out that the Bill of Costs from item 63 to 121 sets out comprehensively the facts surrounding the case and the issues involved, that although company law is in itself a very intricate and involved area of law, Section 60, as indicated in cases in both Ireland and the United Kingdom in relation to financial assistance for the purchase of shares, tends to be very complicated and sophisticated. Having referred to two Irish cases cited in Keane’s Company Law in the Republic of Ireland the Taxing Master states:-

9. The Taxing Master in considering the Instruction fee referred to the nature of the proceedings as pleaded before him. He referred to the transcript of the earlier proceedings before him and to the fact that the proceedings commenced were a claim for £373,000 together with interest. In relation to the seriousness of the claim to Colour Books the Taxing Master recites that Mr Guiden stated that:-

10. This appears at page 60 of the transcript. The Taxing Master then states accordingly the nature of this case alone posed a particular problem in that it involved a consolidated claim made up of quite a number of independent claims and in this regard at page 59 of the transcript the various items are itemised.

11. The Taxing Master refers to the fact that counsel furnished a very detailed opinion extending to eight pages on Section 60. He states that discovery also represented a difficult task as there was discovery in the related proceedings which impinged upon Colour Books and encompassed the consolidated proceedings.

12. With regard to the amount of time devoted to the case by the Solicitor’s firm, this was recorded to have comprised 975 hours involving four members of the firm. The Taxing Master refers to various general considerations in relation to Instruction fees and states further that another difficulty the Company encountered was in relation to the gathering and preparation of the evidence in what was to be a very lengthy and protracted hearing with quite a number of parties participating. He refers to the fact that the brief furnished to counsel was complex and extensive and comprised in excess of 27,000 folios. He says:-

13. He states as follows:-

14. The Taxing Master concluded that the effort of the solicitors involved in this case was indeed exceptional. He said the work demanded of the solicitor was indeed enormous and the amount of preparatory work was equally demanding and indeed complex and required working with commercial and legal experts. He concluded that the responsibility that rested with the solicitors was indeed enormous given the position of the Company. Having examined all the material and heard the submissions of the parties he stated and he was convinced that the amount of the Instruction fee should be £145,000.

15. With regard to counsel’s fees the Taxing Master concluded that the complexity of the case and the likely consequences to Colour Books had it been unsuccessful also justify the existence of a second Senior Counsel. He concluded that this type of work requires the collective participation of the two Senior Counsel with the assistance of a competent Junior Counsel. He referred to the fact that the trial of the action was due to last four weeks and possibly longer. In view of the expected length of the case Senior Counsel directed that he required a second Senior Counsel. In view of the size of the claim and the length of the action it was considered necessary by the Solicitor concerned. It appears that no written directions were received from counsel in this regard and that any directions were verbal in nature.

16. In considering counsel’s fees the Taxing Master referred to a number of authorities including Dunne -v- O’Neill [1974] I.R.180 and Kelly and Breen [1978] ILRM 63. Having quoted from the cases he stated that the Solicitor in striking a proper fee with counsel draws from his wide and continuous experience in practice and brings his accumulated knowledge to arriving at a fee that one would expect to be reasonable in all the circumstances of the case. The fee thus arrived at should reflect all the factors bearing upon the effort, responsibility and the skill of the respective counsel. The Taxing Master states that the solicitor in selecting counsel must recognise the magnitude and difficulty of the case and select such counsel that will give his client the best possible legal representation that the case requires and ensure that his client is accordingly properly represented. He says that in assessing the fees paid to counsel the solicitor can take into account the seniority and specialised expertise of the respective counsel which were briefed in the case. He concluded that in the instant matter, given the complex nature of the case, he was satisfied that the Solicitor had acted reasonably in retaining two Senior Counsel and their eminence in this area of law is unquestionable.

17. Having referred to various cases dealing with counsel’s fees and criteria to be applied on a party and party taxation and in particular reference to comparable cases the Taxing Master concluded in the instant case that none of the cases submitted to him by way of comparison were of assistance to him. The Taxing Master referred in particular to the provisions of Sections 27(1) and 27(2) of the Court and Courts Officers Act, 1995 and concludes that he considers a Brief fee in the order of “£17,500 for both Senior Counsels (sic) and the corresponding two thirds for the Junior Counsel as fair and reasonable and that such fees that a Solicitor acting reasonably carefully and reasonably prudently would agree with the respective Counsels (sic)” and accordingly he allows those sums in respect of the Brief fees in the matter.

18. Senior Counsel furnished preliminary advices on the 4th of June 1997 and on the 12th of June there was an attendance at negotiations at the Law Library when it was indicated that the claim of the Plaintiffs was in the order of £1.5m and the matter failed to settle at this stage. On the 16th of June advices were received from counsel concerning expert witnesses. On the 23rd of June there was a change of Solicitor when Messrs Giles J. Kennedy Solicitors came on record for Farrell Grant Sparks in lieu of Arthur Cox Solicitors. This was the same date on which notice was received setting out particulars of the alleged loss and damage of the Plaintiffs which totalled something nearer £2.5m. On the 26th of June the matter was adjourned for hearing to commence on the 21st of October 1997 for a period of four weeks. It appears from item no. 369 on the bill that at the attendance on the call-over it was confirmed that it was ready for trial with an estimated duration of two to three weeks. It appears from the documentation that advices were received from Senior Counsel approximately one month before the 1st of July 1997. These advices are dated the 4th of June 1997.

19. It appears that expert advice was sought and obtained by Colour Books in defence of the action and in particular advice was received from Coopers and Lybrand Accountants which concluded that there appeared to be no basis for a claim against Colour Books in relation to tax liabilities and the advices concluded that the Company is an entirely innocent party in relation to the transactions the subject of the proceedings.

20. While it appears that the settlement was dated the 23rd of October 1997 it is stated that Colour Books did not execute this until the 24th of October. That apparently was struck out at lunch time on the 24th of October.

21. This Court has been referred to the relevant portions of the transcript relating to the taxation before the Master and the hearing of the objections. In this context it was pointed out in relation to the 24th of October that a number of the counsel in the case did not mark any fees. These included counsel for Mr Jameson and Future Print. In the case of Colour Books it appears that the settlement had been arrived at but that a Director of Colour Books had still to sign the settlement document. It was submitted that the fee for the 24th, if there were to be a fee, should be akin to one for taking judgment in a case. With regard to the further issues, namely the Instruction fee, the question of having a second Senior Counsel, and the quantum of the Brief fees, it is submitted that the involvement of Colour Books Limited was less than that of Mr Harold or Mr Jameson or Farrell Grant Sparks. It appears that both Mr Harold and Mr Jameson did engage two Senior Counsel. However it appears that originally only one Senior Counsel was retained and the second Senior was briefed at a later stage following upon the claim by Mr Jameson and Future Print Ltd. With regard to the claim for £2.5m it was submitted at the hearing of the objections that this was a bald claim which was unsubstantiated. It was submitted that it was a totally puffed up and exaggerated claim. In this regard in reference to the ultimate settlement it was submitted that this is what precisely was proved namely that it was a puffed up and exaggerated claim. It is submitted that the initial claim of Mr Harold was for £180,000 and ultimately his case was settled for £200,000 which represented something in the order of £180,000 together with interest. It was submitted that it wasn’t appropriate for a party, having prepared for the claim, to engage in action to substantially increase the costs and expense by getting a second Senior Counsel merely because they got a notice setting out particulars of special damages and consequential loss which in the instant case amounted to a claim for £2.5m. In the case of Farrell Grant Sparks it appears that one counsel had been briefed with the Junior Counsel but that the insurers required a particular Senior Counsel to be briefed in the action. This Senior Counsel was in addition to the Senior Counsel previously briefed to represent Farrell Grant Sparks. It was submitted that had Farrell Grant Sparks been successful in the action that on a party and party basis clearly only one Senior Counsel would have been allowed in those circumstances.

22. With regard to the question of the level of Brief fees, it was pointed out at the hearing of the objections that in the case of Mr Harold and Mr Jameson the Brief fees were considered by Taxing Master Moran. Brief fees of 40,000 guineas and 30,000 guineas had been marked and I have been informed that they were reduced to 20,000 guineas and 25,000 guineas respectively. It was pointed out to the Taxing Master at the hearing of the objections that both counsel for Farrell Grant Sparks had ultimately accepted fees of £13,500 notwithstanding the fact that Senior Counsel had initially marked a Brief fee of £17,500. It was further pointed out that neither of the Senior Counsel briefed had marked a Brief fee for the 24th of October. It was pointed out further that Farrell Grant Sparks were brought into the proceedings as Defendants and/or Notice Parties in five separate sets of proceedings. It was submitted that the real risk in the proceedings rested on the shoulders of Farrell Grant Sparks and to a lesser extent on Patrick White rather than on the shoulders of Mr Harold, Mr Jameson or Colour Books Limited. On this basis it was submitted that on a party and party basis the Master ought not to allow the same level of Brief fees to counsel representing Colour Books Limited as those paid to counsel for Farrell Grant Sparks. Insofar as the term ‘peripheral role’ was referred to it was pointed out to the Master that this was a term which was used by Senior Counsel for Colour Books himself in his advice on proofs. It was further submitted that from an early stage it was apparent that the liability rested with Farrell Grant Sparks and that they had no real defence to the proceedings either as Defendants or as Notice Parties.

23. The Taxing Master was referred at the hearing of the objections to a number of comparables and in particular to the taxation in Phelan Holdings (Kilkenny) Limited -v- Poe Kiely Hogan . Furthermore is was submitted that the fees in the instant case should be a lot less than those allowed in the case of Ambiorix Limited . Further reference was made to the costs allowed to Arthur Cox in these proceedings where an Instruction fee of £75,000 was allowed. It appears that the Instruction fee claimed on behalf of Arthur Cox amounted to £127,300. In the case of Phelan Holdings (Kilkenny) Limited -v- Poe Kiely Hogan case there was a twenty-one day hearing in the High Court and an appeal to the Supreme Court and ultimately a settlement on the base of damages being paid in the sum of £237,500 in circumstances where the award appealed from the High Court was in the order of £500,000. That case also involved issues of professional negligence. It appears that the Solicitor’s Instruction fee was agreed at a figure of £105,000. It was submitted that taking into account the extra days of hearing in the High Court and deducting for the costs of the appeal that it could be stated that a fair measure of the settlement was that for the work up to and including the first day of the hearing amounted to something in the order of £70,000-£75,000. It was further pointed out that in the case of the costs of Arthur Cox arising from the instant proceedings, these were taxed on a solicitor and own client basis and not on a party and party basis. It was submitted that the costs which should be allowed to Colour Books should be less than those ultimately allowed to the Solicitors for Harold and Jameson which was in the order of £70,000-£75,000.

24. With regard to the reference in the decision of the Taxing Master on the taxation of costs to Colour Books Limited being at risk of financial collapse with the loss of 100 jobs or so it is submitted that there was no evidence to that effect on the taxation. It was conceded that submissions to that effect were in fact made but that there was no evidence that this was the situation.

25. On behalf of Colour Books submissions were made to the Taxing Master at the hearing of the objections in regard to the same matters addressed to him on behalf of Farrell Grant Sparks. It was conceded that to a large extent the action had settled on the 23rd of October 1997. It is submitted that the action of the Master in allowing half a Refresher fee on the basis that the action straddled a lunchtime was something which was done in exercise of the discretion of the Master vested in him under Section 27 of the Court and Court Officers Act. This amounted to an allowance in the sum of 1,000 guineas for each Senior Counsel and two thirds for Junior Counsel. It was submitted that whether or not other parties had marked fees for that day was in the circumstances immaterial.

26. With regard to the question of the briefing of the second Senior Counsel it is pointed out that each of the parties initially agreed to one Senior Counsel and one Junior Counsel. When a fresh claim was advanced in the context of the particulars given at the end of June 1997 the parties briefed second Senior Counsel. It was clear that counsel for Colour Books directed that a second Senior Counsel be briefed because the claim had gone from £377,000 to £2.5m. Furthermore it was stated that the duration of the trial was now expected or had been fixed to last for four weeks. It was stated on behalf of Colour Books that the parties actually considered that four weeks was a conservative estimate and that a more realistic assessment was in the order of six weeks. It was submitted that a trial of that duration with the preparations required and with the sheer volume of documentation would not have been properly covered by one Senior Counsel even on a party and party basis. While the Solicitor accepted the advices of Senior Counsel and briefed a second Senior Counsel it also was pointed out that both Mr Harold and Mr Jameson had two Senior Counsel and that was the same situation that pertained for Farrell Grant Sparks. It was submitted that the action of briefing a second Senior Counsel was the action of a Solicitor acting reasonably carefully and reasonably prudently.

27. With regard to the level of fees allowed to Senior Counsel of £17,500 at the taxation of costs it is submitted that this compares favourably with the fees marked by counsel for the other parties in the case. Mr Harold’s counsel had apparently marked 30,000 guineas and Mr Jameson’s 40,000 guineas. It was pointed out that this was the same fee as originally marked by Senior Counsel for Farrell Grant Sparks. The Taxing Master was referred to a number of cases in relation to comparables, but he took the view that this was a unique case and therefore the comparables were not of assistance such that he was left with a discretion to decide what were the appropriate fees for Senior Counsel having regard to the work carried out and the services rendered by them.

28. With regard to the assertion that the role of Colour Books was a peripheral role, this was rejected on behalf of Colour Books. It was submitted that there were no comparables. On its behalf certain comparables were advanced. It was submitted that the Taxing Master was entitled to come to the conclusion that none of the cases submitted to him was of any great assistance. It was submitted that having come to view that the Ambiorix case was as close a comparison as was available, nevertheless it was not the same as this case, the work was not as involved and the responsibility was not as involved. With regard to the three comparables, insofar as there are three different bills of costs in the same matter, it is submitted that the solicitor and client bill of Messrs Arthur Cox should not be viewed as a comparable. It was submitted that there were particular reasons why that bill of costs was substantially reduced. With regard to the other two comparables these are before Taxing Master Moran. It was pointed out to Taxing Master Flynn that his colleague had not assessed the fee to be allowed on a party and party basis but the fees which had been marked were £210,000 and £250,000. It was submitted that Farrell Grant Sparks had failed to discharge the onus upon it to demonstrate that the Master had erred in any way.

29. In reply the Solicitor for Farrell Grant Sparks submitted that the real question in dispute was the real risk and responsibility involved. It was submitted that if there was a real and genuine risk of Colour Books having to pay £2.5m and their inability to do so resulting in the Company going into liquidation and 100 employees losing their jobs then the fees that the Taxing Master had allowed would probably be quite reasonable, £145,000 Instructions and two Senior Counsel at £17,500 but that there was never a real risk on the part of Colour Books. It was submitted that the real risk involved was that indicated in the advices received from the Accountant and Solicitor engaged on behalf of Farrell Grant Sparks in the proceedings. With regard to the figures of £250,000 and £210,000 Instruction fees submitted in the two comparable proceedings referred to, the Court was advised that the figure of £250,000 had been reduced to £156,000 on taxation and the figure of £210,000 was reduced to £165,000 but that both of these decisions were subject to objections.

30. With regard to the work involved for the Solicitor, reference has been made to the submissions made by Mr Burke to the Taxing Master during the course of the taxation when he indicated that consideration was given to Colour Books advancing a claim for damages itself in addition to the claim for indemnity from the Third Parties. It was indicated that Colour Books Limited decided that it would take up too much time to put that damages claim together and not to pursue such a claim but its main concern at all times was to claim the indemnity it was seeking from the Third Parties.

31. It was submitted by Counsel on behalf of Farrell Grant Sparks before me that if Section 60 of the Companies Act had been breached that the breach occurred in circumstances were the Solicitors had breached their duty of care to the participants of the scheme and an indemnity would arise. With regard to the question whether a company law aspect arose, the issue was whether the Company was in breach of Section 60. It was submitted that the real issues as far as Colour Books was concerned was whether there was professional negligence on the part of the Solicitors and Accountants. As far as the discovery is concerned it is submitted by counsel before me that a great deal of weight was attached to the discovery. Each party had to make discovery of its own documents and also involved in the discovery process was the perusal of the documents discovered by the other parties. It was submitted by counsel that insofar as this was concerned, collation of documentation is what takes most time for the Solicitor in question. While the discovery books of the various parties comprises fifteen lever arch folders, five folders were contained in the brief of counsel who advised that the documentation being retained for the hearing should be shorn of irrelevant material.

32. With regard to the question of the employment of the expert witnesses, advices were obtained from Senior Counsel to engage these witnesses and the reports were received back by September 1997. It is submitted that there is an exaggeration of the expertise and skill brought to bear on the proceedings by the Solicitor and that undue weight was attached by the Taxing Master to this fact. It was the experts who applied their weight and skill to the material in the proceedings. They reverted to the solicitors with the fruits of their expertise and skill. It is submitted that undue weight was attached by the Taxing Master to the perceived weight and skill of the Solicitors for Colour Books. The point in briefing the experts was in order that they would apply their weight and skill to the task. It was submitted that the Solicitors own expertise and skill was reduced by the engagement of the experts in question. The advices in question having been received within one month of being sought, the final advices were received within two weeks of the hearing. It was submitted that the main thrust of the work regarding the engagement of these expert witnesses was not completed until Senior Counsel advised on the retaining of these experts. The initial advice of counsel in this regard were those of the 4th of June and these were expanded upon in his advices of the 16th of June.

33. It is submitted by counsel that insofar as the Solicitors Instruction fees was meant to include an element of work and skill with regard to obtaining expert advice, that element was excessive and exorbitant. It was submitted that at the time counsel advised the obtaining of the expert advice that the question of an adjournment of the action had not arisen.

34. It is submitted that with regard to the claim being made by Christopher Jameson for £2.5m in damages that in the first instance Colour Books was unaware of the magnitude of the claim. Reference was made to the report of the taxation where Mr Burke on behalf of Colour Books pointed out to the Taxing Master that he first became aware of the extent of the claim that was being planned at the settlement consultations which was approximately two weeks before the particulars of loss and damage were issued. It is submitted by counsel that the essential issues remained the same throughout the case namely the liability of Farrell Grant Sparks and the issue of the alleged breach of Section 60 of the Companies Act. It is submitted that the fact of an increased claim did not change this aspect of the case. It is submitted that it did not bear on the complexity as to whether the indemnity would be available from the professional advisors. It was submitted by counsel that the advices of Senior Counsel obtained on the 16th of June 1997 were advices dealing with the issues which were going to have to be dealt with by Colour Books in the hearing. While the monetary claim did increase, the same essential issues remained throughout the period.

35. In support of the contention that there was no essential change, counsel has submitted before me that this is born out by the fact that there were no further written advices issued by counsel after the 16th of June which was a date prior to the receipt of the particulars in the case. This fact is to be viewed in light of the passage of time from the adjournment of the proceedings from the 26th of June to October where a number of months passed and no written advices were deemed necessary. Essentially the case made by Counsel was that the Taxing Master over estimated the complexity and difficulties of the case.

36. With regard to the comparables put forward to the Taxing Master on behalf of Colour Books and Farrell Grant Sparks, the Taxing Master chose at the end of the day to consider that the Ambiorix case was the closest case to the instant case. Counsel has submitted to me that it is to be noted that in the instant case the case was settled at the early stage of the proceedings before any evidence was heard. In the Ambiorix case eight days of hearings took place in the High Court. In the instant case the matter was settled at the opening stage of three days hearing. The Ambiorix case involved an investment by Irish Life of £25m and an Instruction fee of £115,000 was allowed. It was submitted by counsel before me that it is clear that the issues in the Ambiorix case were greater in number and in complexity to those in the instant case. The Ambiorix case also raised various constitutional issues including the issues involving the construction of the Urban Renewal Act. It was submitted that on its face the Ambiorix case was clearly a more substantial case than the instant case and yet in the instant case the Instruction fee allowed by the Taxing Master is some £30,000 greater than that in the Ambiorix case . Counsel has further submitted that the Taxing Master cannot base his Instruction fee simply on the estimated length of the proceedings. In the instant case it had been called on for two to three weeks, one week before it was due to commence.

37. With regard to the comparable cases particular reliance is placed by counsel upon the case of Jameson -v- Farrell which was number eight in the Book of Documentation submitted to the Taxing Master on behalf of Farrell Grant Sparks. It was submitted that it raised the same issues as in the instant case as it was part of the overall proceedings in being. The costs in that case were taxed on a solicitor and client basis.

38. With regard to the briefing of second Senior Counsel in the instant case it is submitted by counsel before me that the reason given for the briefing of second Senior Counsel related to the inference that the case might last some time and therefore Senior Counsel might not be able to give the case exclusive attention. It was submitted therefore that on this basis there was no actual necessity to brief Senior Counsel but it was a matter of convenience for counsel to have a second Senior briefed in the case. It was submitted that the issue of the duration of case must relate to other work and that duration of itself is not a basis for briefing a second Senior Counsel. In this regard reference was made to other cases such as the Ambiorix case which lasted eight days and the Phelan Holdings (Kilkenny) Limited -v- Poe Kiely Hogan case which lasted twenty-one days. Counsel referred this Court to the decisions in the case of the Commissioners of Irish Lights -v- Maxwell Weldon & Darley [1997] 3 I.R. 474 and the case of Smyth -v- Tunney [1993] I.R. 491 insofar as they identify relevant principles to be applied on the taxation of costs. In the latter case the fees paid to opposing counsel were considered relevant. It is submitted by counsel that the objective test was provided and therefore it was where a comparable case of similar magnitude existed one should have regard to it. With regard to the question of the Refresher fees on the 24th of October 1997 the Taxing Master allowed a half Refresher fee. Counsel for Harold did mark a Refresher fee and Counsel for Jameson and Future Print did not. I am informed that Taxing Master Moran allowed a fee of £315 in the case of Harold with £210 Junior Counsel.

39. On behalf of Colour Books Mr Charles Meenan of Senior Counsel submitted as follows:-

40. The jurisdiction of the Taxing Master had been extended by Section 27 subsection 1 of the Courts and Court Officers Act of 1995 which provides as follows:-

41. In the first instance it was submitted that the role of Colour Books was anything but peripheral. Counsel referred to the advices of Senior Counsel of the 16th of June 1997 given before the further particulars were given of the claim. Further, counsel has referred to that portion of the transcript of the taxation before the Master where at page 82 of the report it is stated by Mr Kennedy that “common sense did not prevail and that this gave rise to the further actions in the proceedings”. Counsel submits that the case is characterised by complexity and a degree of difficulty. Counsel submits that with regard to Section 60 of the Companies Act that this is a complex section and that it is complex as to how it is to be interpreted and that there are few enough decisions on point. Counsel further points out that the consequences of breach of Section 60 may be draconian. Transactions may be avoidable under the terms of the Section itself. Initially the hearing of the case was fixed for the 1st of July 1997 for a period of four weeks. Settlement negotiations took place on the 12th of June where a suggestion was made that the claim of the Plaintiffs would amount to £1.5m. However it was clear that a notice for further particulars would be required at this stage and these particulars were furnished on the 23rd of June. The further particulars indicated that the claim was now for a sum of £2.75m as opposed to the initial claim of £373,000. This claim had been prepared by a reputable Accountant Mr Des Peelo and the Plaintiffs were represented by a reputable firm of Solicitors Fawsitt & Company. It is submitted by counsel that this first claim had to be taken on board and could not be considered as merely being puffed up and of no great consequence. A fresh aspect of the case was the issue of the tax liabilities. Counsel has referred this Court to the terms of the settlement agreement of the 23rd of October 1997 as indicating the complexity of the action. The issues involving Colour Books were essentially three fold, first of all a claim that Section 60 of the Companies Act had been breached, secondly that the agreement in question was tainted with illegality and thirdly the question of the indemnity that might be obtained from Colour Books by reference to the negligence of professional advisors. Counsel pointed out that there were in fact five actions in being and the first two actions were substantive actions which were consolidated. The principal proceedings were in the consolidated action. Counsel submitted that it is incorrect to say that in reality Colour Books was only involved in two of the five actions.

42. Counsel has submitted by reference to what was urged before the Taxing Master at the hearing of the objections in relation to the real risk faced by Colour Books Limited that this Court should refuse the appeal by way of review of taxation as the Taxing Master was entitled to refuse the objections concerned.

43. With regard to the particular headings under which the fees are challenged, counsel addressed the issue of the solicitors instruction fee and referred to the detailed bill submitted in support of the contention that the claim was complex. Counsel submits that the issues in this case were complex, difficult and raised novel issues as well. In this regard counsel referred to the fact that there are few decisions touching upon Section 60 of the Companies Act. Counsel referred this Court to the vast amount of documentation amounting to 27,000 folios, the time and labour involved of the Solicitors amounting to 975 hours, and further to the responsibility attaching to the case insofar as a substantial claim had been made. With regard to the importance to the client which is a fact to be taken into account, Counsel has referred to the fact that Colour Books faced a potential loss of £2.5m. This was a substantial risk to Colour Books. Counsel has referred the Court to the transcript of the hearing relating to the taxation of costs before the Taxing Master where inter alia Mr Kennedy submitted in reference to the increase claim “ paper does not refuse ink ”. In this regard it is submitted by counsel that this submission fails to deal with the complexity of the case.

44. With regard to the appearance of the word “unjust” appearing in Section 27(3) of the Court and Court Officers Act, 1995, Counsel submitted by reference to the decisions of Smyth -v- Tunney [1999] 1 ILRM 211 and Tobin and Twomey Services Limited -v- Kerry Foods Limited and Kerry Food plc [1999] 1 ILRM 428 that the Taxing Master applied the law correctly in the instant case and had due regard to the decided cases in this area. On these grounds it is submitted that the decision of the Taxing Master cannot be considered to be unjust. In the former of these cases McCracken J., referred at page 213 of the report to the provisions of Section 27(3) of the Court and Court Officers Act, 1995 insofar as it indicates the jurisdiction of the High Court in a review of taxation. In that particular case McCracken J., stated at page 213 of the report:-

45. In the latter case Kelly J., at page 431 of the report addressed the same provisions of the Act of 1995 and quoted with approval the approach of McCracken J., in Smyth -v- Tunney .

46. It is submitted that the Taxing Master correctly applied the law and that he can only act on the basis of the evidence before him. It is submitted that on the evidence as proffered by the Applicant, the Taxing Master correctly decided the matter before him. It is submitted that the burden lies on the Appellant to show that the Taxing Master acted unjustly. With regard to the case precedents put forward by the Appellant to the Taxing Master, counsel points out that these are comparisons and that they are not precedents. With regard to No.6 on the list, that is the case of Phelan Holdings (Kilkenny) Limited -v- Poe Kiely Hogan it was pointed out that this is not a decision of the Taxing Master but was a settlement and it is submitted that this must rank behind decided decisions of the Taxing Master. It is submitted that different criteria may apply to a settlement as opposed to a decision of the Taxing Master. It is submitted that there may have been a possible discount for a quick payment. The facts of the case indicate that an initial decree in the High Court was given in the sum of £483,750 which was reduced by a settlement of the appeal in the sum of £237,500. It is submitted that this cannot be used as a comparison and that it was considered and rejected by the Taxing Master.

47. With regard to the comparison of Arthur Cox’s costs in the case of Jameson -v- Farrell , counsel has referred this Court to portions of the transcript before the Taxing Master were it was suggested that Arthur Cox had been relieved of responsibility. Furthermore the case was not considered as comparable by the Taxing Master based on the submissions made by Mr Kennedy himself. With regard to the role of expert witnesses Counsel has quoted from the passage of the judgment of Butler J., in Murphy -v- Dublin Corporation High Court, 31 July 1979 quoted with approval by Kelly J., in the case of Tobin and Twomey -v- Kerry Foods Limited at page 436 of the report. In that case Butler J., indicated that it requires experience, judgment and expertise to select the most suitable professional witness for a particular case, to brief him properly so that his attention may be focused on proper lines to advance the client’s claim, and to be able to deal with objections in cross-examination by the opponents. Furthermore, as far as his evidence is concerned its value will depend in no small part on the skill exhibited by counsel in leading his evidence on essentials, the order in which he is led to present his points and in steering him away from irrelevancies. In this regard it is submitted again that the Taxing Master applied the correct criteria in assessment of the Solicitor’s Instruction fee.

48. Counsel submits that the Ambiorix case was an appropriate comparison to take. Counsel has referred to the Instruction fees allowed for Mr Harold and Mr Jameson in sums of £156,000 and £165,000 and submits that the Instruction fee in the instant was in line with those fees.

49. In the instant case the Taxing Master considered that the comparison in the Ambiorix case was the closest in point to the subject case. Counsel has referred this Court in the decision of the case the Commissioners of Irish Lights -v- Maxwell Weldon and Darley [1998] 1 ILRM 421 where at 428 Keane J. (as he then was) quoted with approval a portion of the judgment of Murphy J., in the case of Smyth -v- Tunney [1993] 1 I.R. 451-463. It is submitted that in the instant case the decision of the Taxing Master cited the correct law. It is submitted that the case of Jameson -v- Farrell relied upon as a precedent by the Appellant is not a relevant comparison as Colour Books were involved in three causes of action. These were the claims under Section 60; that the contract was void for illegality and thirdly the issue of the indemnity sought from Farrell Grant Sparks. It is submitted again by counsel that an agreed fee cannot be given the same weight as one fixed by the Taxing Master. It is submitted that the decision of the Taxing Master should only be overturned if it is found by this Court to be unjust.

50. With regard to the briefing of a second Senior Counsel it is submitted that this was appropriate having regard to the complexity of the case and the size of the claim and the fact that the hearing was fixed for four weeks with an estimate of six weeks and it was called-on for a period of twenty-one days. It is submitted that it was appropriate that a second Senior be instructed and that this was the decision which was upheld by the Taxing Master and it is submitted that in so deciding he applied the correct principles.

51. With regard to the Refresher on the last day, counsel has referred to the fact that work had to be undertaken by counsel. He had to be satisfied that what had been agreed was correctly reduced to writing and to explain it to the Directors of the Company concerned. It is submitted that there was no agreement until it was reduced to writing and until it was signed by the parties. It was necessary to procure the signatures of the Directors concerned. The matter was brought into Court and ruled in Court. Insofar as the Taxing Master allowed a half Refresher it is submitted that it has not been suggested that this was an unjust approach. Even if one finds that the sum allowed is generous it does not amount to saying that it was unjust.

52. In reply to the submissions made by Mr Meenan, Mr Ó Braonáin referred the Court further to the provisions of Section 27(1)(2)and(3) of the Act of 1995 and in particular to subsection(2) thereof with regard to the concept of an “unjust” decision. Kelly J., found particular fees allowed for the taking of judgment in the case of Tobin and Twomey Ferries Ltd -v- Kerry Foods Limited to be very much in excess of the norm. He held that the Taxing Master was in error in allowing it and that an injustice resulted from that error. This is the approach contended for by counsel. Counsel further referred to the desirability of a uniform approach between the Taxing Masters and that with regard to comparables one should have regard to the relevant features. Insofar as one has to determine what is fair and reasonable in a given case, fairness can be established by reference to comparisons. No comparisons were in fact relied upon by the Taxing Master in reaching his ultimate decision in this case. It is submitted that the Taxing Master was entitled to reject comparisons as long as he was not wrong in principle, that Section 27(3) refers to errors as to amount and it is difficult to imagine an error as to amount which would not result in an injustice. Insofar as Section 27(3) deals with errors as to amount, the words “he erred as to amount” in the Section are not merely errors “as to approach” or “in principle”. What is relevant is whether an injustice arises from the error.

53. With regard to the contentions of counsel for the Respondent it is submitted that a complexity in this case has been overestimated, that the essential issues identified are those in the Statement of Claim which raises the claim for breaches Section 60 of the Companies Act and that the Applicant’s application to join Third Parties was on an obvious basis of failure to advise in relation to Section 60. Counsel has referred to the fact that in the Statement of Claim there is no plea of negligence, breach of duty or breach of contract on the part of Colour Books alleged. With regard to the case of Jameson and Future Print against Farrell Grant Sparks, Mr Harold was not a party to those proceedings. The professional negligence alleged was that of Farrell Grant Sparks and Mr White and was not alleged as against Colour Books. Counsel stressed the limited nature of the claim against Colour Books as set out in the Statement of Claim. It is submitted that in the Statement of Claim there is no allegation made relating to tax liabilities or an incorrect valuation of the shares. The application to consolidate the various actions was refused save for the first two actions where there was a direction to try one action after another. It was pointed out by counsel that Colour Books was a party to one set of proceedings. With regard to the costs which were payable by Colour Books, as indicated in the settlement of the action, the costs in question are the costs of the proceedings in which it was a party. This is something that was referred to by Mr Guiden at page 9 of the transcript in the initial hearing by the Taxing Master.

54. It is submitted that counsel for the Respondents has complicated matters by referring to the issues involving the Third Parties which in effect were the claims as against Farrell Grant Sparks and Patrick White. With regard to the comparables put forward by Farrell Grant Sparks it is submitted that no weight or insufficient weight was given to the comparisons furnished to the Taxing Master. Counsel indicated that he could not say that the Taxing Master had not considered these at all. He was submitting that insufficient weight had been given by the Taxing Master to these comparisons. It is submitted that allowances ought to have been in greater alignment with the comparables identified. In the case of the Instruction fee of Arthur Cox in the comparison of Harold -v- Jameson contended for, it had claimed an Instruction fee of £127,000 and £75,000 had been allowed. With regard to the comparison of Phelan Holdings (Kilkenny) Limited -v- Poe Kiely Hogan , Counsel submitted that this was not rejected by the Taxing Master on the basis that it was a settlement figure that was arrived at in the case.

55. With regard to the quoted passages from the judgment of Murphy J., in Smyth -v- Tunney Counsel has submitted that that was a correct statement of the law at the time but does not represent a correct statement of the law today in light of the amendments effected in the Court and Court Officers Act, 1995. In the case of the Commissioner of Irish Lights -v- Maxwell Weldon & Darley Keane J., indicated that the complexity and importance of the case and the demands it made on the Senior Counsel concerned are not to be underestimated. With regard to the length of the case he stated in that case:-

56. With regard to the 24th of October, counsel submitted that what had to be done on that date was a reading of the settlement to satisfy its accuracy, the implications of the settlement had to be explained and the signatures by the Directors had to be overseen. It was submitted that this did not take two Seniors and one Junior Counsel to do.

57. In the first place I am of the view that the Taxing Master was bound to have regard to the true nature and the extent of claim being made as against Colour Books Limited in his assessment of the overall taxation and in particular the Instruction fee to the Solicitors. The Taxing Master was also entitled to have regard to the size of the claim being made as against Colour Books. While this claim greatly increased in monetary terms what was necessary to establish was whether the nature of the case itself had greatly changed in the context of the further particulars given on the 23rd June, especially in light of what had transpired at the earlier negotiations that month when a figure of £1.5 million was mentioned. The opinions of counsel testified to some extent to the complexity of the matter in the context of the alleged breach in Section 60 of the Companies Act. The cases I was referred to in that context indicates that this may well be a feature of such cases.

58. Insofar as the Taxing Master relied upon an assertion in relation to the risk facing the company and concluded that the company faced extinction and one hundred loyal employees faced the determination of employment and that this placed an added burden of responsibility upon the shoulders of the solicitors involved, I am satisfied that this was a mere assertion not based upon any actual evidence that was tendered before the Taxing Master. Furthermore, I am not satisfied that the risk that faced the company was something which of itself cast a greater responsibility on the solicitors concerned. I am also satisfied that the length of the case has been somewhat exaggerated and the Taxing Master appears to have relied upon an assertion before him that the case was due to last some four to six weeks but what was urged at the call over of the case is more relevant when it was stated approximately one week before it was due to start that the case was expected to last some two to three weeks.

59. I am satisfied that while cases involving allegations of breach of Section 60 of the Companies Act are not frequent, they are by no means unique and furthermore a construction of the section is not particularly complex insofar as it has it been the subject matter of various determination both in this jurisdiction and in the neighbouring jurisdiction where similar law applies. I am satisfied furthermore that the Taxing Master should have taken into account the advices given to Colour Books by Coopers and Lybrant in assessing the real risk to Colour Books. Accordingly I am of the opinion that the Taxing Master erred in principle in his conclusions in relation to the complexity of the case to Colour Books Limited.

60. With regard to the question as to whether it is appropriate to allow on a party and party taxation for two Senior Counsel, I believe that the Taxing Master should take into account what was stated by Keane J. in the case of The Commissioner of Irish Lights -v- Maxwell Weldon & Darley which has already been quoted by me in this judgment and I am satisfied that the decision to employ a second Senior Counsel was something that related expressly to the complexity of the matter or related to the estimated length of the proceedings. I am of the opinion that if the decision to instruct a second Senior Counsel was one that related to the length of the proceedings that the matter was one which should not have resulted in the taxation of two Senior Counsel on a party and party basis. The actions of other parties in engaging two Senior Counsel may be indicative of the complexity of the case, but again it is not necessarily determinative of this issue.

61. With regard to the employment of experts, these were advised on the part of Colour Books by Counsel. Whether this resulted in the complexity as indicated by Butler J. in the case of Murphy -v- Dublin Corporation already referred to in this judgment is a question of fact to be assessed by the Taxing Master in this particular case. I am not satisfied that the evidence before me demonstrates any great complexity in engaging the experts in this particular case. However, having obtained the advices of the experts the assessment of the complexity of the case from the point of view of the solicitors had to be viewed in the light of their advices.

62. With regard to the comparables put forward to the Taxing Master he concluded that none of the comparables put forward before him were of assistance to him. What his report fails to indicate is precisely the basis on which he reached this conclusion. However, I am firmly of the view that the Taxing Master erred in concluding that the case of Harold -v- Jameson put forward before him was of no relevance insofar as it related to the actual proceedings being taxed in this case albeit the taxation in that case was on a solicitor and client basis. Accordingly, I am of the view that the Taxing Master erred in principle in rejecting this comparison. Furthermore, insofar as the Taxing Master appeared to place some reliance upon the Ambiorix case and indicated that it was closest to the case in point he does not appear to have addressed in his conclusions the particular aspects of that case. It clearly was a case of considerable complexity and certainly of complexity in no less than that involved in the instant case. Insofar as Counsel has submitted before me that comparisons put forward on the basis of agreement reached between the parties ranked less that decisions of the Taxing Master I note that no such conclusion was put forward by the Taxing Master himself in this case. However, I believe that such an assertion would be wrong in principle because one must assume that in the absence of any indications to the contrary that settlements of this nature relate to the application by cost accountants of the relevant considerations in these cases.

63. With regard to the 24th October 1997, I believe that insofar as a settlement had been reached the previous day certain matters remained to be attended to in the context of Colour Books but I believe that this did not warrant the services of two Senior Counsel and one Junior Counsel on the day and insofar as this was the approach taken by the Taxing Master I believe that he erred in principle. Clearly the service provided by Counsel was somewhat more than merely the taking of judgment in the case but as previously stated by me it did not warrant the engagement on the day of three Counsel. I believe that the matter is best approached by awarding the fee allowed by the Taxing Master to one of the Senior Counsel engaged in the case on the day on a party and party basis. I believe that the Taxing Master’s taxation was unjust in the circumstances.

64. Finally in light of the conclusions that I have reached in this case I believe that it is appropriate that this matter be remitted back to the Taxing Master for taxation having regard in particular to the necessity to consider afresh the Instruction fee payable to the solicitors and furthermore the appropriate Brief fees of Counsel and finally the issue as to whether in the circumstances of the case it was appropriate to allow on a party and party basis for two Senior Counsel.