High Court of Ireland Decisions

1. This matter comes before the Court by way of several motions pursuant to Order 99, Rule 38 (3) of the Rules of the Superior Courts, 1986 to review the taxation of the Bills of Costs presented by the Plaintiff pursuant to an award for costs granted in January 1999 at the conclusion by settlement after 23 days of the hearing of a medical negligence action, which said action was compromised for the sum of £2.15 m.

2. In presenting their Bill of Costs, the Plaintiff’s solicitors sought to recover a sum of £385,000 by way of instruction fee, £99,750 brief fee for a single Senior Counsel, together with daily refresher fees of 3,000 guineas.

3. On taxation, the Taxing Master reduced the solicitor’s instruction fee to £315,000 and reduced Counsel’s brief fee to £60,000. The refresher fees were not altered and are not in dispute.

4. Objections were brought in to the sums allowed, but on the 29th July 2000, Taxing Master Flynn upheld the solicitors instruction fee, but reduced the brief fee for Senior Counsel to £42,000.

5. By its Notice of Motion brought on the 19th August, 2000, the Defendants have challenged the amounts allowed in respect of both items as excessive. By further Notice of Motion dated the 1st December, 2000 the Plaintiffs’ advisers have themselves challenged the allowance made in respect of Senior Counsel’s brief fee, contending that the same was too low.

6. As medical negligence cases go, this case was udoubtedly in the category of the more serious. The Plaintiff was born in Holles Street Hospital on the 27th April, 1992 with profound disability, including cerebral palsy of the spastic quadriplegic type, severe developmental delay, microcephaly and severe visual impairment. It was a difficult case, involving separate claims against the hospital and the surgeon. Everything was an issue, including causation. No settlement discussions took place until after the Plaintiff’s case was completed. Mr. McDonald, who appeared for the costs before this Court, suggested that the extent of the particulars raised in the course of the case and the huge volume of memos prepared by the solicitors bore eloquent testimony to the amount of work involved.

7. Mr. Murray for the Appellant points out that four comparator cases were placed for consideration before the Taxing Master, wherein an instruction fee for the solicitor in the range £110,000 - £150,000 was allowed. Counsels’ fees were allowed in the range £22,000 - £35,000. By contrast Mr. Murray says, the Plaintiff had pointed to only one comparator case in the hearing before the Taxing Master, namely Best -v- Welcome , where, in quite exceptional circumstances, the Plaintiff’s solicitor was allowed £275,000 by way of instruction fee, with a fee of £52,000 for Senior Counsel.

8. Mr. Murray’s complaint arises under two headings. Firstly, the Taxing Master

9. To shorten matters, while Mr. Murray pointed out that the comparator cases before the Taxing Master suggested a reasonable brief fee for Senior Counsel would be £31,500, as was marked by Defendant’s Counsel in the case, he confined his main attack to the Solicitors instruction fee.

10. He also applied, and was permitted, to introduce Affidavit evidence in relation to a number of other comparator cases which, Mr. Murray submitted, indicated that even in cases subsequent in time to the instant one, a ceiling or maximum instruction fee of £200,000 - £225,000 appeared.

11. I will turn without delay to the ruling of the Taxing Master delivered on 31st July, 2000.

12. In the course of his ruling, Taxing Master Flynn acknowledged that this was a case covered by the provisions of the Courts and Courts Officers Act, 1995 which provides at Section 27 (1):-

13. The significance of the 1995 Act in changing the landscape in which the Taxing Master operates has been discussed and analysed in Minister for Finance -v- Lawrence Goodman, Goodman International and Subsidiary Companies (Judgment of Laffoy J. delivered 8th October, 1999) and by this Court in Superquinn Limited -v- Bray UDC and Others (Unreported Judgment delivered on the 5th May, 2000). The Taxing Master now, as those cases confirm, has a wider remit and more extensive powers. While under the old pre 1995 system, the Court in the context of a review under Order 99, Rule 28, could “make such Order as may seem just,” now, under Section 27 (3) of the 1995 Act, it can intervene “provided only that the High Court is satisfied that the Taxing Master has erred as to the amount of the allowance or disallowance so that the decision of the Taxing Master.... is unjust”.

14. Accordingly, it may be seen that the Act has not only conferred on the Taxing Master, who has special expertise in this area, all the attributes of a specialist tribunal, but further clearly indicates that the Court should exercise a considerable degree of judicial restraint in the context of a review, intervening only where a failure to do so would result in an injustice.

15. Needless to remark, the Court must consider in this context whether or not the Taxing Master has erred in principle in the manner in which he has conducted his review. This is apparent from the decision in Bloomer and Others -v- Incorporated Law Society of Ireland (Unreported Judgment of Geoghegan J. delivered on 3rd December, 1999) where he stated at p.5 :-

16. It is not difficult in the instant case, on a study of the ruling delivered by Taxing Master Flynn, to conclude that a very serious error lay at the heart of his approach to the case.

17. At p.25 the Taxing Master states:-

18. So far, so good, but then this passage follows:-

19. In fairness to Mr. McDonald, he has told this Court that in his view this was a completely erroneous interpretation of the memo in question and, having looked at the memo myself, I share that view. It contains nothing which would warrant the observations delivered by Taxing Master Flynn. That memo, and indeed other documents, including Counsel's directions, would suggest that a huge input was made into the case by Mr. Nesbitt and that he discharged all his responsibilities, both in and out of Court, in a highly professional manner.

20. However, I am left with a very real impression and belief that this view erroneously formed by the Taxing Master infected his overall approach to this taxation, because other portions of the ruling extol the effort and contribution of the solicitors in an obvious sense of contrast with the contribution of Counsel.

21. For example, he states at p.34:-

22. I am reinforced in the view I have formed by the very fact that Mr. McDonald relies upon the same skewed view of the Taxing Master to argue that, in the circumstances, he brought in a fee for Counsel which was too low, although, of course, he maintains that their solicitors instruction fee was reasonable.

23. Mr. McDonald further submitted that, as the Taxing Master’s function under the new Act is to carry out an evaluation of the work done by the Solicitor, he was entitled and indeed obliged to perform that task without necessarily being bound by comparator cases. Furthermore, he did not accept that the comparator cases were on all fours with the instant case.

24. If however the Taxing Master is rejecting comparator cases which have been opened to him as irrelevant, he must at least provide his reasons for doing so.

25. I cannot find in the reasoning of the Taxing Master any adequate explanation for the rejection of the comparator cases which were placed before him. This leaves the Court in the highly unsatisfactory situation in that the solicitors instruction fee in this case has been measured at about 50% more than solicitors fees in comparator medical negligence cases of similar gravity. The Taxing Masters figure is based solely on his own assessment of the value of the work done. This would suggest, at the very least, that the Taxing Master would have to set out in a reasoned and detailed way the basis for his assessment, particularly when it marked such a departure from the comparators. The judgment in Superquinn -v- Bray UDC , suggested that the Taxing Master set out such detail so as to place the Court in a position where it could carry out a review in an informed way. In Superquinn, I stated at p. 30:-

26. It is true to say that the Taxing Master did attach great weight to the memoranda prepared by solicitors in reaching his conclusions. However, quite what value should be attached to such memoranda seems to me a very open question for the reasons shortly to be set out. It seems to me there is a very serious risk in this case that the Master added to the solicitors instruction fee because of a mistaken interpretation placed by him on the role performed by the Senior Counsel retained in the case. If I am correct in so thinking, there must obviously be a risk that Counsel suffered as a result in the fee allowed, although the figure ultimately allowed seems to be very much at the centre of the range of figures emerging from the comparator cases, if one includes the later cases.

27. The question then arises as to what course of action the Court should adopt having reached a conclusion, as it has done, and that the whole adjudication of the Taxing Master is unsafe and unsatisfactory for the reasons stated.

28. Both sides have urged that, in the event the Court was satisfied that an erroneous principle had rendered the findings of the Taxing Master unsafe, that it should substitute its own findings as to amount.

29. In discussion with Counsel, I indicated that the Court would be prepared to do so, providing Mr. McDonald accepted that the Court could do so predominantly, at least insofar as solicitor’s fees were concerned, by reference to comparator cases. Mr. McDonald felt unable to agree that the Court should so proceed, and this leaves me with no option but to remit the matter back to the Taxing Master because I do not believe I have any sufficient material to enable me arrive at a figure which is proper in the circumstances, at least as regards solicitors fees. Parke J.’s dicta in Irish Trusts Bank -v- Central Bank of Ireland (1976) 7 I.L.R.M. 50 that “it is extraordinarily difficult for a judge to attempt to review” a solicitors instruction fee has been cited in many cases over the years. That is still the position today. However, the authorities show that the Court is obliged to do so if the evidence warrants it and if it has before it the materials to enable it to do so.

30. That was precisely the view I took in Superquinn where I had before me not only the Bills of Costs, the submissions and transcript of the hearing before the Taxing Master, but also a lengthy and detailed judgment from Laffoy J. and a comprehensive and focused analysis of work done prepared by one of the instructing solicitors to assist me in my task. I have no such assistance available here.

31. It seems to me that in the type of situation which has arisen here the Court should be extremely reluctant to substitute itself for the Taxing Master unless evidence is led at the hearing from experts which will enable the Court to arrive at its own conclusions. This was what occurred before Barron J. In Best -v- Welcome (1996) 3 I.R.

32. An example of the difficulty facing the Court is immediately available in the instant case. The Taxing Master attached enormous importance to the folder of memoranda prepared by the solicitors in the case. He stated as follows at p.13 of his ruling:-

33. At the request of the parties I have looked at some of these memoranda. I think it would be unfair to comment in a critical way upon them. However, one memorandum relates to the conversation with the solicitor in England who provided some case law information. While the Taxing Master attached great significance to this, I would have thought it of negligible value in terms of determining costs. Equally, I have looked at other memoranda which suggest that notes were taken by different people of the same meeting and, again, I would have difficulty in seeing any value in such duplication. I stress I do not offer these observations to criticise the solicitors, who clearly rendered an extremely dedicated and professional service, but rather to highlight the great difficulty confronting any judge, whose training and experience has been as a barrister, rather than a solicitor. Mr. Murray, perhaps somewhat ‘tongue in cheek’, suggested that most judges would have a good enough grasp of solicitors fees to make an appropriate assessment. While I would concede that Counsel’s fees do not present as great a difficulty, given that I can bring my own experience to bear on that issue, it is by no means a guarantee of accuracy even in this area given how easy it is to become detached from changing realities in the marketplace.

34. This Court would have no idea what weight should properly be attached to the creation of memos as a means of valuing work done. The compilation of memos per se is hardly an indicator of the work done or the value of that work. It is not difficult to imagine how another firm of solicitors might perform a similar degree of work without the creation of equivalent documentation.

35. I have set out these matters in some detail lest it be thought the Court was seeking to avoid obligations which it undoubtedly has under the 1995 Act.

36. It is interesting to compare the situation in Ireland with that in the UK which exists under the Rules of the Supreme Court (Revision) 1965 (UK) (as substituted by SI 1996 No. 632)

37. Under that Rule, which provides for a review by a judge of a decision of a taxing officer, the judge may appoint assessors to assist him in his task, of whom one is a taxing officer and one a practising solicitor. While this may raise constitutional problems in this country, it underscores in a very real way the difficulties judges face when trying to assess solicitor’s costs. It seems to me that where called upon to do so, the Court should have the benefit at least of appropriate expert evidence in the hearing before it, unless, as already stated, the existing material provides a sufficiency of information to enable the Court perform the particular function. In my view in this case it does not.

38. There must be also, in my view, a strong case for suggesting that, in addition to conducting an analysis and providing reasons for his conclusions, the Taxing Master should also break up the solicitor's fee into component elements. A different view was taken in Best -v- Welcome , but that was a case which was concerned with the legal landscape prior to the 1995 Act. The new Act, it seems to me, requires such an approach so as to keep appeals of this nature within manageable proportions when brought before the High Court.

39. Because of the particular problems which arose in this case I will in remitting the matter, refer it for the adjudication of the other Taxing Master.