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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Doyle v. Deasy & Company Ltd. & Anor [2003] IEHC 617 (21 March 2003)
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Cite as: [2003] IEHC 617
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[1997 No. 15289P]
Between:
Plaintiff
Defendants.
Judgment of Mr. Justice Aindrias O Caoimh delivered the 21st March, 2003.
This is a review of taxation from a determination of Taxing Master Flynn made on the 27th June, 2001, on a hearing of objections before him on 19th February, 2001, following a ruling by him in the taxation of the costs of the plaintiff as against the defendants on 31 st July, 2000.
The items that are in dispute are as follows:
(a) The plaintiff solicitor's instruction fee which while marked at £205,000 was taxed at £145,000 and allowed on review at the same level, and
(b) The brief fee for senior counsel which while marked at £31,500 was taxed at £22,000 and confirmed on review by the Taxing Master.
The plaintiff s claim was instituted by plenary summons issued in December, 1997 for damages for personal injury together with injunctive relief.
It is stated that the claim in essence was one in which the plaintiff alleged to have been employed by the first defendant was mistreated at work and in particular compelled to engage in unlawful activity in which it was alleged the defendants engaged in consort. It was alleged that the plaintiff was required as part of his employment to engage in an illegal cartel as a result of which he suffered strains and stresses at work and that he was affected psychologically and psychiatrically as a result.
In January, 1999, the plaintiff caused an amended statement of claim to be delivered to include pleas of aggravated and exemplary damages.
After an exchange of pleadings, including a full denial of the plaintiff's claim, the proceedings were ultimately settled on terms between the parties, which terms were confidential, save those in relation to costs and in this regard the settlement was on the basis that the defendants undertook to pay the plaintiff's costs to include reserved costs and such costs were to include the costs of two senior counsel.
Following the taxation of the costs herein the Taxing Master delivered his ruling and thereafter objections were carried in and the Taxing Master delivered a written ruling.
It is submitted on behalf of the defendants that the Taxing Master erred in his approach to the taxation and that he acted in an erroneous manner in giving his determinations. In particular it is submitted that the Taxing Master overstated the complexity of the action and the burden on the legal advisors. It is submitted that he consciously chose not to approach the taxation of costs in the manner mandated by judgments of this Court. Counsel submits that the Taxing Master chose to criticise in insulting terms the judgment of Kearns J. in the case of Gallagher v. Stanley & Anor. (Unreported, High Court, Kearns J., 23`d March, 2001) and that he characterises as questionable the judgment of the High Court in the case of Best v. Wellcome Foundation Ltd. (No 3) [1996] 3 I.R. 378 and in particular the comparative method of analysis.
It is submitted that this led the Taxing Master into error and that in the consideration of the relevance of comparative cases the allowances made by the Taxing Master were wholly excessive to the point of being unjust.
Particular reference is made to s. 27 (3) of the Courts and Court Officers Act, 1995 (`the Act of 1995') which provides:
"(3) 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 of a Taxing Master of the ~Iigh 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."
It is submitted that the allowances made in relation to the solicitor's instruction fee do not bear scrutiny in any analysis and that in any event on the Taxing Master's own analysis he erred as the essential burden was on counsel rather than on the solicitor.
On behalf of the defendants this Court is asked to substitute for the allowances of the 'faxing Master, an instruction fee of £48,000 with a brief fee for senior counsel in the sum of £l5,750, or otherwise to reduce the allowances to a figure considered just or failing this to remit the matter to taxation before another Taxing Master.
It is submitted that in essence the complaint made by the plaintiff in his claim is that the employer made it impossible for him to perform his duties and difficult, if not impossible, for him to reach targets and that personnel from the second defendant were exercising control over the first defendant as a result of which the plaintiff suffered stress.
In the initial statement of claim it was pleaded, inter alia, that the defendants had acted negligently and in breach of duty to the plaintiff and it was pleaded that the first defendant had acted in breach of its contract of employment with the plaintiff and that the second defendant had wrongfully and unlawfully procured the first defendant's breach of contract and that the defendants had conspired in the negligence and breach of contract and breach of duty alleged.
The plaintiff alleged that he and the financial controller of the first defendant took over the day to day management and control of the general operations of the first defendant subject to part-time supervision by a person believed to be a servant or agent of the second defendant. The statement of claim contains a plea that without consulting or informing him the defendants caused and occasioned, or permitted the installation of covert staff surveillance video cameras on the defendant's premises which cameras he states were discovered by staff members who went on strike. It is further pleaded that it was later discovered that audio "bugging" equipment had been installed on the first defendant's sales representatives' canteen for the purpose of carrying out covert surveillance on members of staff who reported directly to the plaintiff. It is pleaded that this equipment was installed without the plaintiff being informed or consulted.
The plaintiff pleads that following discovery of the bugging device the defendants imperilled and damaged the relationship between the plaintiff and the staff members who reported to him and undermined his position as sales manager.
The plaintiff pleads that by reason of the incidents involving the video and the audio surveillance an atmosphere of suspicion and mistrust was created within the first defendant company and the plaintiff pleads that he was thereby placed in a position of being at least partially blamed by staff members, including those who reported to him, for the covert surveillance activities and the resultant atmosphere of suspicion and mistrust. It is pleaded that this atmosphere undermined industrial relations with the first defendant and interfered with the proper and ordinary relationship necessary to the plaintiffs effective management of the sales team who reported to him and other members of the first defendant's staff with whom he came into contact.
It is pleaded that these matters were extremely stressful for the plaintiff.
It was further pleaded that in addition and throughout the period of the plaintiff's employment as sales manager to the date of the statement of claim, the defendants and each of them have wrongfully and unlawfully conspired in and participated in the making of secret and anti-competitive agreements between the defendants and various other competitors whereby the participants purported to fix or otherwise exercise control over beverage prices charged by the parties to the agreement with a view to preventing, and/or controlling price cutting and/or undercutting in the wholesale beverage trade. It is pleaded that the plaintiff was instructed to comply with the terms of these agreements and that his ability to perform his duties as sales manager and in particular to improve the sales performance of the first defendant was severely, wrongfully and unlawfully limited. It is pleaded that various parties to these agreements broke the terms of same while the plaintiff was required to observe same and the effect on the first defendant's sales performance was as damaging as it was inevitable in the circumstances.
The plaintiff pleads that the defendants laid the blame on him for the inevitable results of their insistence on his compliance and the failure of the defendant's competitors to do so and that he was blamed for the failure of sales, price-fixing and market-share policy over which he had no effective control. It is pleaded that he was made a scapegoat for its failure by those who put the policy in place.
It is further pleaded that the defendants failed and neglected and refused to place a proper and defined management structure in place such that the first named defendant's operations were subjected to the control and/or interference of persons whose authority and responsibility were never properly defined or stated to the plaintiff.
It is pleaded that other employees of the first defendant behaved towards the plaintiff in a threatening, personally insulting and generally bullying and abusive manner and with the purpose and intent of undermining the plaintiff both personally and professionally in the performance of his duties. It is further pleaded that the plaintiff s authority was undermined by interfering in and appropriation of the plaintiff s duties in the performance of sales representative meetings thereby undermining the plaintiff s relationship with his sales representatives. The plaintiff pleads that there was a campaign from mid 1996 on, to undermine and demoralise him and that he was thereby put under severe and persistent psychological stress.
Pursuant to an order of this Court made the 18th January, 1999, the plaintiff was permitted to amend his statement of claim. In the amendments it was pleaded as follows:
"11a By its wrongs aforementioned the defendants and each of them have deliberately and consciously caused, occasioned, permitted, required and/or encouraged the plaintiff in the performance of his duties as an employee of the first named defendant to assist the defendants in the conduct of unlawful activities in breach of the Competition Acts, 1991 and 1996.
b Further and by reason of the wrongs aforementioned the plaintiff has been placed at risk of sanction pursuant to the said Acts and has been required to attend before the Competition Authority to be examined on oath in relation to any investigation by the said Authority under sub para. 1 (a) (1) of the Schedule to the Competition Act, 1991 as! amended by s. 9 of the Competition (Amendment) Act, 1996 whereby the plaintiff has been and will be put to great expense, inconvenience and distress.
c. The said wrongs further constitute a fundamental breach and subversion of the relationship of trust and good faith which ought to exist between employer and employee.
d. The manner in which the defendants have committed the said wrongs was characterised by oppressiveness, arrogance and outrageousness.
e. The said wrongs have been exacerbated by the defendants' refusal to acknowledge the said wrongs and the manner of its defence of these proceedings in denying the existence of anti-competitive agreements or the occurrence of the anti- competitive acts hereinbefore set out.
f. The defendants' threats, in various terms, that the plaintiff was foolhardy to litigate with defendants of the power and might of the defendants in these proceedings and that the said defendants would "crush" the plaintiff,
g. The defendants' wrongs aforementioned further constituted an abuse by the defendants of their economic power and might, their knowledge of the plaintiff s financial dependence upon the defendants for his means of livelihood and the plaintiff s belief that if he refused to comply with the defendants' directions to engage in the wrongful acts aforementioned he would be or would be likely to be dismissed from his employment and unable to obtain alternative employment in the industry which he had chosen to make his career.
h. By their wrongs aforementioned the defendants calculated and/or intended to make profits and/ or avoid monetary sanctions such as would exceed the ordinary measure of damages payable to the plaintiff herein."
In the statement of claim there was a claim for damages and injunctive relief and at para. 13 (iv) of the amended statement of claim it was pleaded:
"iv. By reason of the facts and matters pleaded at para. 11 hereof aggravated, exemplary and punitive damages and an indemnity in respect of the plaintiffs costs and expenses incurred by reason of his involvement in the Competition Authority investigation aforementioned and in respect of all sanctions imposed upon the plaintiff under or by virtue of the Competition Acts aforesaid."
Based upon the pleadings it is submitted by counsel for the defendants that what was involved in these proceedings was a claim for personal injuries albeit involving a claim for exemplary and aggravated damages and relating to the stress, anxiety, psychological and psychiatric injury alleged to have been sustained by the plaintiff in circumstances of alleged bullying at work which it is alleged made his position intolerable and subjected him to stress. It is submitted that this was never properly characterised as a Competition Act case and was never a case of any great complexity. It is submitted that the gravamen of the plaintiffs case is that he was subjected to pressure at work and the actions of the defendant employer alleged were not the actions of a reasonable employer.
Counsel submits that certain agreements may be rendered in breach of the Competition Acts by reason of the failure to have them certified or licensed and that they may in any event be caught by the de minimis rule.
Counsel submits that where the plaintiff complains that he has been mistreated and isolated and expected to reach targets which could not be reached, whether the agreements alleged were lawful or unlawful is essentially nihil ad rem. Counsel poses the question of whether the defendants could have avoided liability if they put the plaintiff under the stress and pressure by showing that the agreements were lawful. On this basis it is submitted that the unlawfulness of the agreements is not truly at issue.
In his report of the 31" July, 2000, the Taxing Master recites the relief claimed by the plaintiff and states that he accepts in its entirety the preamble to the instruction fee in the bill of costs namely pp. 70 to 137 which he records "...sets out in considerable detail all the work necessary to enforce and vindicate the rights of the plaintiff and which was necessitated to bring these proceedings to a successful conclusion."
He states that "[I]t can be seen for the reliefs sought which encompassed the ... areas of legal jurisprudence [of breach of contract, declaratory relief, damages for personal injuries, related distress and stress, aggravated damages, indemnity for costs in appearing before the Competition Authority] that this case was indeed complex and difficult." Having referred to the pleadings he states:
"A perusal of the pleadings shows the extent of the difficulties and complexities both in nature and extent of the case, all of which placed considerable responsibility on the legal teams involved. Further more, (sic) the magnitude of the case, the difficulties and complexities involved, and the importance of the case as expressed in Attorney General v. Simpson [1963] I.R. 329 can be seen from an in depth examination of the said pleadings."
The Taxing Master refers to the discovery in the action and the fact that same was not made on a voluntary basis "...which added to the complexity from the solicitor's perspective."
The Taxing Master deals with the instruction fee and quotes from Cordery, Cordery on Solicitors, 9th ed., to the effect that "[W]hen however the work has demanded an abnormal amount of time, e.g., the solicitor has had to work for a long period or to the exclusion of all other business, it is proper to take this into account." The Taxing Master quotes from the Rules of the Superior Courts and indicates the principles governing taxation as stated in these rules. He indicates his difficulty in assessing the value of the actual work in monetary terms. At the end of p. 13 of his report he concludes that "[I]t is clear from the evidence that the work involved on behalf of the plaintiff was onerous and the outcome was essential to the plaintiff, accordingly, the responsibility factor was of an enormous dimension." As the terms of the settlement were confidential to the parties, save the terms relating to costs, it is difficult to assess whether the outcome was essential to the plaintiff in any respect save costs. Having quoted further authorities and from the Rules, the Taxing Master states at p. 17, inter alia, as follows:
"The instruction fee in this case can only be assessed in relation to the work that the case necessitated. The responsibility that rested with the solicitors was obvious, as was the actual effort and energy required."
The Taxing Master indicates that he did not accept that this case was to be viewed as a claim for personal injury with a breach of contract element. He refers to the fact that reliance was placed on learned counsel, even to the drafting of letters which must to some degree have eased the burden on the solicitors.
Counsel submits that there is no evidence of the work involved in the instant case apart from that in the bill of costs. The Taxing Master refers to the plaintiff s solicitor having to "...invest quite an amount of travelling time to the case" but counsel submits that this is not indicated in the evidence.
Counsel submits that the plaintiff s solicitor was not seeking to be remunerated by reference to an hourly rate and that accordingly the reference to time is misplaced.
With regard to the case of Best v. Wellcome Foundation Ltd. [1996] 3 I.R. 378, counsel indicates that the reference to "any special experience of the solicitor" should refer to expertise and not experience.
The Taxing Master at p. 15 of his report refers to an English case of Treasury Solicitor v. Regester [1978] 2 All E.R. 920 and to a quotation from Donaldson J. (as he then was) in reference to an hourly rate applied and submits that this is a wholly inapposite quotation in the context of the instant case.
It is submitted that insofar as the Taxing Master did not view the instant case as essentially being a claim for personal injury that he was fundamentally in error.
Dealing with the fees of counsel, the Taxing Master recites passages from many decisions of the Superior Courts in Ireland and also to English decisions. The cases referred to set forth various legal principles to be applied in considering the fees of counsel. It must be said, however, that not all of the case law cited or the principles referred to are applicable to the facts of this case, such as the reference to refresher fees of counsel.
At p. 32 of his report the Taxing Master states:
"In looking at counsel's fees now, each element must be viewed and considered individually. This exercise is performed with a view to considering the work within each element in monetary terms. Accordingly a hypothetical amount may be applied to these elements which can then be aggregated. We have therefore reached a hypothetical figure reflecting the individual elements.
Then we return to the drawing board and the virgin elements are to be aggregated from the out set and viewed and considered according to the principles laid down, and the hypothetical amount to be applied thereto. In the first lflace we are left with two hypothetical figures which are added together resulting in an aggregate hypothetical figure. In the second place we are left with one hypothetical figure. A difficulty may then arise, if the possible results are not alike. What happens should the resultant amounts differ, are we to take the higher amount, the lower amount, or a mean average, or what? The learned judge failed to instruct us upon this."
This passage appears to relate to a passage from the judgment of Laffoy J. in the case of Minister for Finance v. Goodman (No. 2) [1999] 3 IR 333 but it is not to be found there. The passage quoted by me from the report of the Taxing Master appears to represent a plea on his part for clarity where he considers the same to be absent from recent judicial decisions in the field of the taxation of costs rather than something that relates specifically to the facts of the instant case.
Again at p. 33 of his report the Taxing Master, having quoted portion of the judgment of Smyth J in the case of Spring & Anor. v. The Minister for Finance (Unreported, High Court, Smyth J., 29th May, 2000), states as follows:
"Accordingly, looking at the brief fee one must consider a number of elements, including the refresher fees but ultimately, the brief fee is the amount which is appropriate in rewarding counsel for defending or enforcing the rights of the party. The different areas of work that counsel undertook and how their efforts translated into the eventual outcome should be reflected in the fee furnished on a party and party basis."
Counsel before me questions the relevance of this passage to the facts of the instant case where no refresher fee arises.
The Taxing Master then states as follows:
"I think that in relation to the subject matter of the case I have pointed out already the complexity and magnitude of the case and suffice to say that counsel faced equally taxing chores in this case. The effort factor of counsel was of equal dominance to that displayed by the solicitors and it does not as I have said lend itself to a mathematical calculation. It can only be gauged after the event and therefore assessed after the event. An assessment of this hidden factor can only be formed after a full consideration of the whole of the circumstances of the case, i.e. the facts, the evidence, etc. and how the opposing side ran their case, so that one is assessing the costs on an equitable basis of proportionality." Counsel questions the assertion that the assessment of counsel's fees can only be gauged after the event and the application of the approach to the facts of the instant case which was settled before the trial of the action commenced.
The Taxing Master then states that counsel's fees in the area of competition law and the other areas involved in this case must reflect the expertise required. He concluded that this is a specialised area and a difficult area, which he concluded were exceedingly complicated.
Counsel before me submits that if the allegations raised in the pleadings were true that there was a clear breach of s. 4 of the Competition Act 1991 and that it was not therefore a complex matter. Furthermore, counsel submits that if the matter was a complex one for counsel this did not necessarily involve complexity for the solicitor and would not necessarily influence the instruction fee of the solicitor.
To his ruling the Taxing Master annexed certain documentation including an intended statement of evidence in the action to be given by the plaintiff. It appears that objection was taken to this as the allegations contained therein were refuted in the pleadings and the evidence were it to have been given would be liable to be tested and in the instant case it was not evidence that was ever given.
After the taxation of the plaintiffs costs by the Taxing Master objections were carried in by the defendant to certain of the allowances made by the Taxing Master. These objections related to the brief fees allowed to counsel and the solicitor's general instruction fee. Written submissions were filed by both parties at the time and thereafter it appears that a hearing took place before Master Flynn on 19t` February, 2001, and this Court has been furnished with a transcript of the hearing.
The Taxing Master issued a written ruling on the 24th May, 2001, which is remarkable as it runs to 156 pages with a further 159 pages of appended documentation.
At the outset of his report the Taxing Master states that before dealing with the objections it is necessary to explore the present state of law upon taxation and he says that the reasons for this will become clear on a reading of the ruling. The following 84 pages of the report are devoted to the Taxing Master's dissertation on the matter before he deals with the objections in the instant case.
The Taxing Master commences this as follows:
"Most recently the assessment of legal costs has taken a turn for the worse. It appears that the principles which are laid out to assess fairly and justly the legal costs are being disregarded, violated and transgressed to the extent that in their place is supplanted a system which can and will lead to injustice to all parties to taxation. The method of scrutinizing the costs of an actual case and how these have been incurred has been relegated into second position and presently at the top of the assessment procedure is its successful rival, Comparative Analysis."
The Taxing Master, having quoted from the High Court decision in Smyth v. Tunney [1993] 1 I.R. 451 and the definition of an instruction fee, states as follows:
"Are we now at the stage that we challenge the very foundation s upon which the law is assumed to have evolved? Are we now to disregard that the costs incurred must have been reasonably incurred and having regard to the matter at taxation as a whole, they must be proper and reasonably necessitated by the circumstances of the case? In a taxation of costs there is a temptation to look at the fee claimed and if it appears to be exorbitant, it is paired down regardless to a somewhat arbitrary amount without having regard to the enormity of the work that this sum reflects or the amount of time the case took or the effort involved. However, this temptation is acceptable if the alternative is to merely assess costs on the basis of other cases."
Having quoted O. 99 r. 10 (2) of the Rules of the Superior Courts the Taxing Master states:
" I personally cannot see how we can disregard this precept of taxation. In the instant matter virtually all the submissions centred around comparisons and not one party seemed to be prepared to evoke the existing canons of taxation. Thus, it would appear first principles have been abandoned. Rule 10 ensures that the costs thus incurred must be necessary and proper and are determined on the basis that they were incurred in furthering or facilitating the cause or action of the party whose costs are being taxed."
The Taxing Master goes on to assert that comparative analysis is "...unquestionably the only method now in vogue to assess party and party costs." He later states:
"If comparisons alone are to be allowed to take over the assessment we can with absolute impunity neglect the laws as laid down with which restrictions are placed on arbitrarily reaching a conclusive allowable figure in respect of any claim."
He asserts that O. 99 r. 37 (18) will be made redundant. He adds:
"Less people should think that by the use of comparisons we are in some measure approaching precision the fact remains that all we are doing is adopting a lazy and ineffective process which is inherently plagued with injustice and unfairness."
Having referred to "comparative anarchy" the Taxing Master states later in his report at p. 16:
"It is funny, no peculiar, no obviously bizarre that we have not found the use of comparisons in either the rules of court or in legislation. We may indeed conclude from this that both the rules of court and legislation have obviously got it wrong."
Having quoted from Donaldson J (as he then was) in Treasury Solicitor v. Regester [1978] 2 All E.R. 920 where it is indicated that the object of the exercise of taxation is to arrive at a sum which is fair and reasonable having regard to all the circumstances and that this is an exercise of assessment and balanced judgment and not an arithmetical calculation, the Taxing Master states:
"We are rapidly approaching an arithmetic computational assessment of costs, whether this is right or wrong I cannot say, but what is clear is that comparisons are merely the accessory and not the panacea of assessment."
He indicates later that the principal obligation is to tax actual costs at a taxation concerned with actual finite costs without the necessity of pandering to the `peddler of comparisons.'
The Taxing Master emphasises the role of a solicitor in striking a proper fee with counsel and indicates that he brings his "...accumulated knowledge to arriving at a fee that one would expect to be reasonable in all the circumstances of the case." He then adds that the solicitor when exercising such an agreement "...does not have open to him comparator cases and accordingly should not be straddled with this disadvantage." He then adds: "The solicitor in selecting counsel is guided by his experience and briefs the most appropriate counsel which the case requires. When selecting a specific barrister for a case he 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."
Under the heading of "Scientific Taxations" the Taxing Master states that the procedure of adopted comparators for the purpose of taxing costs has been afforded a certainty which is misplaced. He adds: "Comparators are mistakenly seen as applying a definite mode of assessment in taxations rendering upon the result a scientific confidence." He later adds that comparisons "...suffer from a bias."
The Taxing Master advances various concerns regarding the use of comparators which he states afford reasons why comparisons should be accepted only having passed a very strict form of proof. He states that comparisons which have not been the subject of taxations, that is, cases that settle prior to or during taxations "...will not assist or be accepted as comparisons to cases that are the subject of taxation, for the reasons of settlement are not disclosed and the gauge of measurement is therefore hidden..."
At p. 27 of his report the Taxing Master says:
"The assistance, cogency, relevant and probative value of comparisons in taxations have not been subjected to judicial scrutiny sufficiently well to rely upon them without question. The result or impact of comparisons upon costs have not been chartered as to allay fears that they may adversely affect the defence or enforcement of persons engaged in litigation. A Taxing Master cannot accept comparisons as a legitimate tool on the basis of theory only and at that unscientific theorisation is to be avoided at all costs. Propositions based upon empirical data cannot be accepted as universal law."
At p. 31 he adds:
"Comparisons can only be employed if there exists strict rules of guidance or there exists a technique which renders the use of comparisons fair and proper."
The Taxing Master then purports to indicate pre-conditions for the reception of comparative evidence by Taxing Masters (thereby purporting to speak on behalf of his colleague) "...in considering the probative value as against possible prejudice" -language more appropriate to the reception of evidence at a criminal trial- and then sets forth that study will have to be embarked upon to satisfy the Taxing Masters of eleven different matters, none of which appear to have any particular relevance to the type of evidence at issue, namely:
1. The potential error or marginal error rate involved;
2. The existence and maintenance of standards governing its use;
3. The presence of safeguards in the characteristics of the technique;
4. Analogy to other techniques which have been accepted;
5. The extent to which the technique has been accepted in other fields of inquiry or investigation;
6. The nature and breath of the inferences to be drawn;
7. The clarity and simplicity with which the technique can be described and its results explained;
8. The extent to which the basic data are verifiable by the Taxing Master;
9. The availability of experts to test and evaluate the technique;
10. The probative significance of the comparison in relation to the circumstances of the case; and
11. The care with which the technique was employed in the case.
It is notable that the Taxing Master concedes that the above "...appraisal of examination..." is abridged from McCormick, "Scientific Evidence: Defining a New Approach to Admissibility", (1982) 67 Iowa L. Rev. 879, 911-912.
Thereafter the Taxing Master addresses, under the heading `Comparisons v. Comparables' what he considers to be the appropriate approach to comparisons. At p. 36 of the report he states: "Comparisons must be viewed with a jaundiced eye". He then quotes from a work of which he is the joint author on the subject of Taxation of Costs. He sets forth his own perceived disadvantages of comparisons and then describes as "...certainly jurisprudentially questionable" a statement made by Barron J in the case of Best v. Wellcome Foundation Ltd. [1996] 3 I.R. 378 that in the view of the learned Supreme Court judge "...comparison is ultimately the correct approach to assess the instructions fee." The Taxing Master quotes at length from his own work and then, notwithstanding the quotation from the judgment of Barron J, describes as questionable whether comparisons are legally proper in the measurement of costs.
The Taxing Master proceeds to state that "[S]tatutes providing for costs and in particular the taxing of costs must be strictly construed and as they are perceived to be penal" and again quotes his own work as authority for this far reaching statement!
The Taxing Master refers to the taxation in the instant case and the objections raised and points out that each party has relied upon comparable cases to support their respective points of view upon the allowances.
Having adapted quotations in other areas to suit the case against comparisons being used, the Taxing Master then vents his views of the judgment of Kearns J in the case of Blaise Gallagher v. Joseph Stanley and Anor (Unreported, High Court, Kearns J., 23rd March, 2001) and claims that the learned High Court judge "mutilated my ruling" in that case. He uses this report to vent his criticism of Kearns J's approach to the use of comparables as a procedure in assessing costs. Having expressed his criticism of the judgment of Kearns J. the Taxing Master states:
"It is incumbent upon me in the instant matter to set the standard straight in relation to the use of comparator cases as a number have been placed before me for consideration to the matter at hand."
Later at p. 55 of the report the Taxing Master suggests bias on the part of Kearns J where he states:
"It is hard to resist the conclusion that Kearns J. was possibly conscious of a sense of loyalty to the bar on the one hand and on the other hand an astonishing protestation against the efficiency and expertise of solicitors to handle complicated cases."
The Taxing Master appears to have difficulty with Kearns J when he said in reference to the Taxing Master:
"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."
Returning to the instant case he states that he believes "...that the comparisons opened were so absurd as to permit of dispensing same without reasons for doing so." He then continues:
"This preoccupation with criticism for the sake of criticising is vertiginously inappropriate and results in a deconstruction of the law rather than developing ideas to embark upon a critical analysis."
The Taxing Master returns to criticising Kearns J for what he stated in regard to the creation of memos and the weight to be attached to same as a means of valuing work done. The Taxing Master states that Kearns J's is incorrect in what he said in this regard. He further says that the judgment in relation to the use of primary material as a measure of assessing legal costs is "questionable."
Dealing with the objections the Taxing Master refers to the basic headings of claim and the general nature of the defence raised and the amendment to the statement of claim and the defence raised of ex turpi causa non oritur actio. Dealing with the aspect of discovery, the Taxing Master refers to the fact that a firm of accountants were retained which was in ease of the solicitor. He recites the fact that the accountants were retained on the basis that they would be familiar with going through invoices and company accounts. It is pointed out that the inspection of documents required several visits to the defendant's premises and this involved the attendance of three solicitors on one occasion and two on two others. It is stated that discovery was not made on a voluntary basis and that this "...added to the complexity from the solicitors' perspective. It is pointed out that six attendances in all were necessary to inspect discovery documents.
In relation to the anti-competitive activities alleged, the Taxing Master refers to the fact that senior counsel in his preliminary advice on proofs stated:
"While the plaintiff has suffered personal injiries in the sense of stress, panic attacks and related psychological upset, these have now largely resolved themselves and he has been in a position to return to work as sales manager with Deasys. The gravamen of his claim against the defendants is the compulsion, on their part, that he participate in unlawful and anti-competitive agreements in the distribution of their products as part and parcel of his obligations as sales manager with Deasys. As sales manager he was blamed for not getting better results and the plaintiff complained to Deasys that what they were doing was unlawful and that Deasys were the only company who were abiding by the wholesaler agreements which is why the sales figures were not better."
The Taxing Master refers to another aspect which he believed requires specific mention - the plaintiff's claim for aggravated or punitive damages. He states that research was carried out on punitive, aggravated and exemplary damages and this required counsel to consider the area of law in relation to "...aggregated (sic)/exemplary damages "arising out of the unusual circumstances pleaded"."
The Taxing Master refers to the outline legal submissions of counsel wherein it is stated that the plaintiff seeks aggravated/exemplary damages out of the unusual circumstances pleaded and that the defendants have relied upon the principle ex turpi causa non oritur action.
The Taxing Master refers to the fact that the plaintiff relied upon the conduct of the defendants in the manner they conducted the litigation and raised difficulties for the plaintiff at all times, and in this regard mention is made of the incomplete discovery until less than two weeks before the date of hearing.
Counsel before this Court submits that this is an irrelevant consideration in the circumstances.
Thereafter the Taxing Master appears to adopt the words of senior counsel for the plaintiff where at p. 94 of his report he states:
"While this Honourable Court has to await the conclusion of the evidence, it is submitted that the Court would be entitled to take into account, so far as aggravated damages are concerned, the manner in which the defendant (sic) have conducted their defence including a denial of all wrong doing on their part and an assertion that it all originates in the plaintiff..."
The Taxing Master then says:
"I have considered the objections to this matter very carefully. I have considered the comparable case. The consideration was as I have set out above. I was not convinced that my ruling over-estimated the costs that have been allowed. In fairness to the parties I do not think I can leave it at that."
He then refers to the comparables submitted and concludes that the comparisons do not constitute comparisons for the matter at hand. He later adds that he does not think that he needs to reiterate ad nauseam the reasons why the cases cannot be accepted as comparators as the same offend the actual principles of comparative analysis. While he has included the comparators submitted in an appendix to his ruling he adds that "...on a perusal of the cases it will be clearly understood as to why their use is unhelpful."
Counsel before this court submits that the ruling does not indicate why the comparators at issue should be considered to be unhelpful and indicates that he does not understand the conclusion of the Taxing Master.
Counsel indicates that while the Taxing Master goes on to state that the case was expected to run for fourteen days that it was estimated to last two weeks which in fact involved eight court days and not fourteen.
The Taxing Master concluded that both parties appeared to be confused in relation to the use of comparisons and he satisfied himself that there existed no comparisons. He then refers to the documents to which he had regard in his assessment of the case, including the bill of costs, the pleadings, advices on proofs, outline legal submissions. To this list he adds the "Statement of Thomas Doyle."
The Taxing Master quotes from the advices of senior counsel, who stated that it was pleaded that "...in breach of the contract of employment [the plaintiff was required by Deasys to carry out his employment as a sales manager] by participating in and cooperating with Deasys, Guinness Ireland Group Limited and other wholesaler distributors in operation of a price fixing agreement between wholesale suppliers of soft drinks and bottled beers in the Cork and Kerry regions." Counsel concluded:
"As a consequence of the breach of contract, including breach of the relationship of trust and good faith in the context of the employer/employee relationship, the plaintiff has suffered severe psychological upset and distress."
Counsel submits that this supports the defendants' contention that the claim was essentially one for damages for personal injury.
The Taxing Master then refers as follows:
"As can be seen the areas of law were complicated and this precept was identified from the outset by Senior Counsel. The law concerning distribution agreements is a relatively new lex corpus and given the additional features of this case demanded a higher than average input from both solicitor and counsel."
At p. 104 the Taxing Master refers to the fact that the lawyers involved dealt with two principle areas of law, namely labour law and European law. He concluded that it appeared from the materials that they were fundamentally dealing with two cases in one and "...that is not having regard to the work which was necessitated by the investigation of the Competition Authority."
Dealing with the aspect of labour law the Taxing Master states:
"Labour law has become a legal minefield. The amount of legislation emanating yearly from the Department of Trade and Enterprise is staggering .... From the proceedings and in particular the outline written submissions in the instant matter, labour law represented no small feature in the plaintiff's case."
The Taxing Master outlines the features which he indicate must be regarded in the context of the amount of work involved:
At the outset he refers to the hearing and the anticipated length of the case. He then refers to the legal submissions including the authorities cited - including employer liability and damages for non physical injury and authorities dealing with stress and strain at work. Counsel before me submits that this was not a case requiring reference to 40 authorities and furthermore the inclusion in a book of authorities is not an indicator of the work involved. While the Taxing Master refers to time it relates to the duration of the case.
The Taxing Master refers to expert witnesses for the plaintiffall of whom with the exception of an economist were such as might normally be required in a personal injury claim.
The Taxing Master then refers to the fact that there were some 46 physical witnesses in the case. Counsel submits that the number of witnesses does not determine the complexity of the case and submits that a number of the witnesses in the advice on proofs were formal witnesses. The Taxing Master adds that consultations were necessary "...with various parties (sic) together with the preparation of witnesses for the hearing, quite a number of reports, technical and medical, required extensive work for the prospective hearing."
He concludes:
"6. Essentially, the case was one that encompassed factual and legal indicia and on the material submitted was both taxing in time and effort."
The Taxing Master then refers to seven headings from the submissions made in written submissions made on behalf of the plaintiff before him. Counsel complains that the Taxing Master has not sought to analyse these points.
Dealing with the instruction fee the Taxing Master again refers to the aspect of discovery and submits that it took a considerable amount of time. He then refers to the bill of costs which suggests that the inspection of documents, meetings with counsel and chartered accountants and the correspondence occupied a considerable amount of time. Counsel submits that the accountant were paid modest fees for what is submitted to be an "apparently complex exercise" namely £1,600 together with V.A.T.
While the Taxing Master quotes from various cases including Maltby v. D.J. Freeman & Co., [1978] 1 W.L.R. 431 and to the words of Walton J. where he refers to a professional man continuing to think about his work after he leaves his office, counsel before me submits that in the instant case there was no evidence of the plaintiff s solicitors continuing to think about the case.
The Taxing Master refers to the views of senior counsel in suggesting a brief fee of £30,000 guineas to his instructing solicitor and the fact that the solicitor thought the same to be reasonable. However, the Taxing Master himself did not allow this fee and it is accordingly unclear what significance is attached by the Taxing Master to the views of senior counsel and his instructing solicitor at the time, as it is clear the Taxing Master considered the fee to be too high. He allowed a brief fee of £22,000.
The Taxing Master states at the end of p. 142 of his report that the "...magnitude and complexity of the case is further complicated by the sensitive facts surrounding this case." Counsel questions what is meant by this and how it adds to the complexity of the case. In fact dealing with the sensitivities the Taxing Master has regard to a statement of the plaintiff, which in the circumstances was never given in evidence.
At p. 144 of his report the Taxing Master adds an addendum which treats of his taxation in the export credit insurance case of Goodman v. Minister for Finance [1999] 3 IR 356.
At p. 149 the Taxing Master refers to the "...difficult decision of whether to proceed before the Irish courts or whether to seek the assistance of the European Union itself." Counsel points out that the plaintiffs claim for damages for personal injury could only be brought before the Irish courts and no such difficulty arose in this case. With regard to the competition law aspect, the case was advanced under ss. 4 and 5 of the Competition Act, 1991 and that European law in the area operates in parallel with the provisions of the Competition Acts. The Taxing Master later refers to the Competition Authority as the foremost investigative authority in relation to the implementation of the E.U. competition rules and counsel points out that the Taxing Master appears to be confused in this regard.
With reference to the statement at p. 150 of the report that the "...Competition Authority is the foremost investigative authority in relation to the implementation of the E.U. competition rules" counsel submits that this statement represents confusion on the part of the Taxing Master.
In regard to what is stated by the Taxing Master at p. 152 of his report and his own ruling in the taxation of costs in the export credit case, counsel points out that in the case of Goodman v. Minister for Finance there had been a 57 day hearing in the High Court where the instruction fee allowed was £429,000 in respect of work which included work which the Taxing Master stated had been carried out years before the actual taxation. While the Taxing Master indicates at p. 154 that the issues in this case included the "...constitutionality of the bugging devices..." it is submitted by counsel for the defendant that no such issue was raised in the pleadings. Even if the surveillance was unlawful, there was no constitutional element raised.
At p. 155 of the report the Taxing Master states as follows, having referred to his earlier ruling:
"I wish to emphatically stated (sic) that I am not comparing the export credit taxation to the matter at hand but it is impressive to see that figures will always leave themselves open to application in any manner or form and accordingly, the use of comparators in seeking to justify allowances should be rarely accepted in the absence of actual proof of comparability."
He then states that he felt that he allowed a little less than he should have allowed in the instant case but he does not indicate in what respect he considered his allowance to have been less than it should have been.
Counsel refers to the list of cases put forward in submissions to the Taxing Master for comparative purposes and it is submitted that the personal injury cases are not without relevance. In particular, reference is made to medical negligence cases and to other cases including cases of accidents at work and cases involving alleged unsafe systems of work. Further reference is made to the competition law case of Chanelle Veterinary Limited v. Pfizer (Ireland) Limited (Unreported, High Court, O'Sullivan J., 301` July, 1997).
Counsel further refers to the list of authorities of the plaintiff in appendix four to the report of the Taxing Master.
At appendix five the Taxing Master includes a statement of the plaintiff. It is submitted that as the case was settled without the plaintiff having been heard in evidence that the inclusion of this statement is inappropriate.
Counsel refers to the written submissions prepared by him and these can be summarised as follows:
(a) The Taxing Master gave no, or no adequate, weight to the distinction between solicitor and client costs and party and party costs and did not have sufficient regard to the fact that the onus was on the plaintiff to establish that he was entitled to the costs claimed;
(b) The Taxing Master erred in principle in overstating the complexity of the case as far as the party for the costs was concerned;
(c) The Taxing Master erred in principle in holding that there were no relevant comparable cases;
(d) The Taxing Master failed to apply the applicable law, in particular in regard to his approach to comparator cases and in his rejection of the comparator cases put forward by the defendants.
Based upon these essential submissions that there was error in the general approach of the Taxing Master to the taxation of the plaintiff s bill of costs it is submitted that the allowances in relation to counsel's fees was excessive to the extent of being unjust. In particular it is submitted that there is no explanation given by the Taxing Master as to why he considered a brief fee of £22,000 to be appropriate. It is submitted that this allowance was not supported by other relevant cases such as Commissioners of Irish Lights v. Maxwell, Weldon & Darley [1997] 3 I.R. 474 in which the Supreme Court allowed on a solicitor and client taxation a brief fee of £15,000 to senior counsel who acted without a junior counsel on an oral planning hearing before an inspector of An Bord Pleanala which lasted for nine days. It was noted that the hearing involved technical issues of huge complexity.
It is submitted that the allowances in the instant case are also not proportionate to the fees allowed to counsel in Superquinn Ltd. v. Bray U.D.C. [2001] 1 IR 459, in which Kearns J. allowed brief fees of £25,000 and £35,000 in his recognition of the complexity and degree of preparation which the case entailed and its `...test case character...'. This action lasted 27 days and it is submitted that it involved hugely complex issues of fact and to a lesser extent of law. Furthermore it is submitted that the fees allowed in the instant case are out of line with those allowed to senior counsel in the case of Bloomer v. Incorporated Law Society oflreland (Unreported, Supreme Court, 30th July, 2001) where a brief fee of £21,000 was allowed to a sole senior counsel in what is submitted was a very complex case, that was in the words of Geoghegan J. "...barrister led".
Counsel also indicates that the defendants in this case paid to a single senior counsel, on a solicitor and own client basis a brief fee of £15,750. Counsel refers to the fact that the Taxing Master stated that this was "unhelpful" without any explanation for this conclusion. Counsel submits that in the instant case this fee provides what is perhaps the most reliable guide as to what ought to have been allowable to counsel for the plaintiff.
In reference to the solicitor's instruction fee it is submitted that the allowance was excessive to the extent of being unjust. It is submitted that the Taxing Master failed to provide any explanation as to why he considered the £145,000 instruction fee to be appropriate. It is submitted that this was not supported by comparator cases cited to the Taxing Master, nor was same supported by the allowance of £150,000 in Superquinn Ltd v.
Bray U.D.C., [2001] 1 IR 459 a case where the proceedings had been alive for ten years and involved complex issues of fact. Based upon comparison with the instant case it is submitted that the allowance of £145,000 in the instant case is wholly excessive.
It is submitted, applying the appropriate criteria, namely;
(a) any special expertise of the solicitor,
(b) the amount of work done, and
(c) the degree of responsibility borne,
that it has not been shown that the solicitors brought any special expertise to bear, and in fact were reliant upon the assistance of senior counsel and by accountants engaged by them; that the amount of work done was reduced by the contribution of the accountants and senior counsel; and that the responsibility borne was not inordinate or exceptional in any way, notwithstanding the suggestion to the contrary by the Taxing Master. It is submitted that the solicitors would be more that adequately and fairly remunerated by an allowance of £48,000 on a party and party basis. It is emphasised that the allowance is not intended to be and ought not be a full indemnity against the costs incurred which, in the instant case included no less than 37 occasions when the solicitors met the plaintiff and/or his wife and/or counsel. It is submitted that the suggestion that the plaintiff's future career rested on the outcome of the case is specious. Reliance is placed upon the fact that eight months prior to the settlement of the proceedings, the plaintiff was offered and accepted employment elsewhere in the packaged drinks industry.
In conclusion it is submitted that the allowances made by the Taxing Master in respect of the items in dispute are in error to the extent of being unjust and the entire foundation of the Taxing Master's ruling is flawed.
It is submitted that the allowances should be reduced to £15,750 brief fees for senior counsel with a proportionate two thirds of £10,500 for junior counsel and a solicitor's instruction fee of £48,000.
In the alternative, the defendants ask this Court to reduce the allowances to such amounts as appear fair and reasonable in all the circumstances. Failing this, it is submitted that the case should be remitted to the other Taxing Master.
In support of his submissions, counsel for the defendants has referred this Court to the principles outlined in the cases of Attorney General (McGarry) v. Sligo County Council [1991] 1 I.R. 99, Best v. Wellcome Foundation Ltd. [1996] 3 I.R. 378, Bloomer v. Incorporated Law Society of Ireland [2000] 1 IR 383 (Unreported, Supreme Court, 30th July, 2001), Commissioners oflrish Lights v. Maxwell, Weldon & Darley [1997] 3 I.R. 474,
Gallagher v. Stanley (Unreported, Kearns J., 23`d March, 2001), Harold v. Jameson (Unreported, b Caoimh J., 31St July, 2001), Heffernan v. Heffernan (Unreported, High Court, Gannon J., 2"d December, 1974), Kelly v. Breen [1978] I.L.R.M. 63, Minister for Finance v. Goodman (No.2) [1999] 3 IR 333, Smyth v. Tunney [1993] 1 I.R. 451 [1999] 1 ILRM 211, Superquinn Ltd. v. Bray UD. C [2001] 1 IR 459 and Tobin & Twomey Services Ltd. v. Kerry Foods Ltd. [1999] 1 ILRM 428.
Counsel characterises the instant case as a more than usually complicated personal injury case, which indirectly involved competition law. It is submitted that it did not involve a single incident or accident and did not involve a unique aspect such as a case involving asbestosis. It is submitted that the claim for exemplary damages is not determinative of the nature of the case.
Counsel submits that the Taxing Master gave insufficient attention to the fact that the costs in question were party and party costs.
Counsel refers to the fact that there was an exceptional number of consultations, which it is submitted feed into the instruction fee. Counsel categorised these as a luxury. It is submitted that the Taxing Master misidentified the nature of the action and wrongfully characterised the case as one of exceptional complexity. Counsel concedes that it was a more than an unusually complex personal injury case, which indirectly involved competition law.
It is submitted that on the basis of the pleadings of the plaintiff's case, the unlawful aspect alleged must have been manifest.
Counsel submits that there is a deficient statement of the nature of the work done. It is submitted that the reports of the Taxing Master do not explain the allowances in the case. Essentially it is submitted that the Taxing Master was incorrect to reject all the comparisons and to suggest that there was no comparison for the case. Counsel submits that the Taxing Master should have had regard to a range of fees in the spectrum of cases submitted to him. It is submitted that all the comparisons yielded information which shows that the allowances in this case are excessive.
Mr. Thomas F. Creed, counsel for the defendants submitted that before this Court should intervene to set aside the rulings of the Taxing Master it must be satisfied that the allowances in question are unjust. He asks this Court to examine the discrete parts of the rulings. It is submitted that if the Court concludes that the Taxing Master used his rulings to sound off on wrongs which he considers were done to him in another judgment this does not impinge on the ruling in this case.
Counsel refers to s. 27 (3) of the Court and Court Officers Act, 1995. He refers to the reasons advanced by the Taxing Master for not utilising comparators. Counsel refers to s. 6 of the Competition Act, 1991 which provides, inter alia:
6.-(1) Any person who is aggrieved in consequence of any agreement, decision, concerted practice or abuse which is prohibited under section 4 or S shall have a right of action for relief under this section against any undertaking which is or has at any material time been a party to such agreement, decision or concerted practice or has been guilty of such abuse.
( 2 ) ( a ) Subject to para. (b), an action under this section shall be brought in the High Court.
( b ) An action under this section may be brought in the Circuit Court in respect of any abuse which is prohibited under section 5 but any relief by way of damages, including exemplary damages, shall not, except by consent of the necessary parties in such form as may be provided for by rules of court, be in excess of the limit of the jurisdiction of the Circuit Court in an action founded on tort.
(3) The following reliefs, or any of them, may be granted to the plaintiff in an action under this section:
(a) relief by way of injunction or declaration,
( b ) subject to subsection (6), damages, including exemplary damages.
Counsel submits that it was necessary for the plaintiff in his action to show that he was forced to engage in illegal activity.
Counsel refers to the history of this action and the necessity for the plaintiff to bring motions for discovery of documents. Counsel refers to a ruling of this Court (McCracken J.) dealing with the aspect of discovery and refers to the fact that the Taxing Master had the documentation pertaining to this puling.
Counsel refers to the nature of the action and in this regard refers to a statement prepared by the plaintiff which suggested that he discovered an illegality in the practices he was required to follow and that when he refused to follow same he was blamed for the failure of the defendant company to meet its targets.
Counsel refers to the advice on proofs prepared by senior counsel and refers to the long list of authorities cited by counsel. He submits that the case involved many factual complexities which presented difficulty in proofs.
Counsel stresses that the burden of proof lies with the defendants, being the parties seeking the review and in this regard counsel refers to Minister for Finance v. Goodman (No. 2) [1999] 3 IR 333 which shows that the defendants must show that the error (if any) identified by the Taxing Master amounted to an injustice.
Counsel refers to portion of the judgment of McCracken J. in Smyth v. Tunney (No. 2) [1999] 1 ILRM 211 where he said at p. 213
"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."
Counsel refers to other authorities including Tobin & Twomey Services Ltd. v. Kerry Foods Ltd (No. 2) [1999] 1 ILRM 428 and Minister for Finance v. Goodman (No. 2) [1999] 3 IR 333 where this statement was approved by Kelly J. and Laffoy J. respectively.
In addition counsel refers to Bloomer v. Incorporated Law Society of Ireland (No-2) [2000] 1 IR 383 where Geoghegan J. stated, inter alia, at p. 387
"In considering whether the taxing master erred, I must see whether in arriving at his decision he had regard or excessive regard to some factor which he either should not have had any regard to or to which he should have had much less regard. I then have to consider whether there was some significant factor to which the taxing master ought to have had regard and to which he either had no regard at all or insufficient regard. Those are examples of errors of principle in the consideration of the facts but of course the court must also consider whether the taxing master has fallen into error in either law or jurisdiction."
Counsel further refers to Superquinn Ltd. v. Bray U.D.C. [2001] 1 I.R. 475 in which Kearns J. stated at p. 475
Under the old system, the court had a wide ranging remit and, in the context of a review under 0.99, r.28, could "make such order as may seem just".
Now under s. 27(3) of the Act of 1995 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".
This wording seems to represent a significant shift of emphasis and to impose a heavier burden on any party seeking to challenge a ruling of the Taxing Master. This interpretation is acknowledged at p. 350 of the Minister for Finance v. Goodman (No. 2) [1999] 3 IR 333 and can scarcely be a matter of doubt. It would suggest (when taken in conjunction with s. 27(1) and (2)), that the court should exercise a considerable degree of judicial restraint in the context of a review, although it must clearly intervene if failure to do so would result in an injustice.
Counsel submits that this Court in reviewing the decision of the Taxing Master must make a value judgment in relation to any allowance or disallowance and intervene only if it finds the allowance or disallowance was so unreasonable as to be unjust.
With regard to the allowance in this case counsel refers, with reference to the solicitor's general instruction fee, to the judgment of Barron J. in Best v. Wellcome Foundation Ltd. (No 3) [1996] 3 I.R. 378 at p. 387 where he stated, inter alia, as follows:
It seems to me, that what has to be done is to consider the overall work having regard to the matters in O. 99, r. 37, sub-r. 22 (ii). This rule is 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 r6sponsibility 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 of 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."
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."
Counsel submits that the Taxing Master carried out a "root and branch" analysis of the nature of the work done in the instant case and examined all the documentation referred to by him in the case. Counsel refers this Court to the documentation, including the outline legal submissions of leading counsel in the case.
Counsel submits that this case was not merely a claim for personal injury but that a significant aspect of same related to the breach of contract claim. Counsel submits that the plaintiff was also seeking to protect his reputation, particularly in light of the defence filed which pleaded that any illegal conduct alleged was the fault of the plaintiff.
It is submitted that it was an essential part of the plaintiffs claim that the defendants were engaged in a concerted practice to fix prices within the drinks industry and that meetings were held at various places at various intervals with a view to monitoring price fixing arrangements. It is submitted that the claim involved not only the plaintiff giving evidence of the meetings but also corroborative evidence of the facts alleged. It is submitted that the Taxing Master correctly placed emphasis on the fact that there was a large number of witnesses, only a small proportion of whom were to give formal evidence. Counsel refers to the fact that the services of an expert economist was required.
Counsel refers to the history of the litigation and submits that the evidence shows that the case was being dealt with on an assiduous basis until it was completed; that it involved extensive work on the part of solicitor and counsel ar~d it is submitted that the Taxing Master concluded correctly that "the work involved on behalf of the plaintiff was onerous and the outcome was essential to the plaintiff, accordingly, the responsibility factor was of an enormous dimension." It is submitted that the defendants' categorisation of the proceedings as a personal injury case with an element of damages for breach of contract is without foundation.
With regard to the use of comparators, counsel submits that since the passing of the Act of 1995 the position in regard to the use of comparators by the Taxing Master has changed to such an extent that he is not required to rely on comparators furnished if they are not of great assistance to him in assigning the value of the work done or the services rendered by solicitor and counsel.
Reference is made to portion of the judgment of Kearns J. in Superquinn Ltd. v. Bray U.D.C. [2001] 1 I.R. 475, where he stated at pp. 474, 475:
In his report on the objections the Taxing Master stated as follows:
'As I have stated in my ruling of the 30th July, 1996, it is not necessary for me to look at the Court and Court Officers Act, 1995, and determine the assessment in accordance with the provisions of s. 27 thereof. I am . still convinced that the particular section merely puts the powers of the Taxing Master on a stronger statutory footing and not much turns on this point.'
The Taxing Master adopted a different approach in relation to the application of the Act of 1995, to the taxation of the bills of costs in relation to export credit issues. In his report on the taxation he stated as follows:
"On any fair reading of s. 27, it seems to me that the latter view of the Taxing Master must be correct. A similar view was taken by Laffoy J. when she stated at p. 349 of the Minister for Finance v. Goodman (No. 2) [1999] 3 IR 333 as follows:
"While this point was not addressed by counsel, it seems to me that sub-ss. (1) and (2) of s. 27 have introduced a fundamental change in relation to the function of the Taxing Master in the taxation of solicitor's disbursements, including counsels' fees. Before the coming into operation of the Act of 1995, it was no part of the function of the Taxing Master to make a value judgment as to what the disbursements should be. However, by virtue of sub-s. (1) it is part of his function to examine the nature and extent of work to which disbursements relate and to determine the value of the work done or the service rendered. By virtue of sub-s. (t) his function is to assess what he considers in his discretion to be a fair and reasonable allowance for the work done or service rendered."
Where such powers are expressly conferred on the Taxing Master by statute, it must follow that the Taxing Master also has a duty to examine the nature and extent of work in any particular case and make his own fair and reasonable assessment on the merits accordingly."
Counsel observes that Kearns J. in that case rejected the comparators put forward. Counsel refers to a portion of the judgment of Keams J. in Gallagher v. Stanley (Unreported, High Court, 23`d March, 2001) where he stated:
"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."
Counsel refers to the fact that the comparators adduced by the defendants before the 'faxing Master consisted of nine road traffic accident cases between the values of £105,000 and £150,000, five work related accident cases between £120,000 and £150,000, two road traffic cases of a value of £1.85 million and £2.75 million respectively and one medical negligence case with a value of £1.125 million.
It is submitted that these cases were not helpful in assessing the plaintiffs case. Counsel refers to the fact that the settlement terms were confidential and that on this basis the Taxing Master was inhibited from utilising the value of damages in the comparator cases in assessing the level of fees to be allowed in the case. It is submitted that in those circumstances the Taxing Master utilised the only other course which was available to him which was to carry out a `root and branch' analysis of the case on its own merits and to determine the appropriate allowances for the various fees based upon his own experience as an expert tribunal. It is submitted that the Taxing Master was entitled to assess the fees in this manner and that if this Court accepts the Taxing Master's view of the case the Court would have no hesitation in rejecting the comparators furnished by the defendants.
Counsel refers to the bill of costs and the amount of work done in relation to discovery of documents which arose from the manner in which the defendants met the plaintiff s claim.
Counsel submits that the marshalling of witnesses and the proving of every allegation of fact added to the immense workload.
With reference to counsel's fees, reference is made to the judgment of Laffoy J. in Minister for Finance v. Goodman (No. 2) [1999] 3 IR 333 where she stated at p. 349,350:
"While this point was not addressed by counsel, it seems to me that sub-ss. (1) and (2) of s. 27 have introduced a fundamental change in relation to the function of the Taxing Master in the taxation of solicitor's disbursements, including counsel's fees. Before the coming into operation of the Act of 1995, it was no part of the function of the Taxing Master to make a value judgment as to what the disbursements should be. However, by virtue of sub-s. (1) it is part of his function to examine the nature and extent of work to which disbursements relate and to determine the value of the work done or the service rendered. By virtue of sub-s. (2) his function is to assess what he considers in his discretion to be a fair and reasonable allowance for the work done or service rendered."
Reference is also made to portion of the judgment of Kearns J. in Superquinn Ltd v. Bray VD.C [2001] 1 IR 459 at p. 475 where he stated:
"Where such powers are expressly conferred on the Taxing Master by statute, it must follow that the Taxing Master also has a duty to examine the nature and extent of work in any particular case and make his own fair and reasonable assessment on the merits accordingly. This must mean that some supposed "no go areas", particularly with regard to counsels' fees, no longer exist and that some principles, expressed in cases such as Dunne v. O'Neill [1974] I.R. 180 and Kelly v. Breen [1978] I.L.R.M. 63, in relation to counsels' fees are no longer determinative, but merely factors to be taken into account. Of course, the Taxing Master may still follow and adopt these well established principles and criteria when he deems it appropriate, but the Act of 1995 has clearly conferred on the Taxing Master, who has special expertise in this area, all the attributes of a specialist tribunal."
Counsel submits that the Taxing Master applied the correct principles in examining counsel's fees. Counsel submits that no case has been made out of over caution, or negligence by the defendants.
Counsel submits that the work of counsel for the defendants cannot be compared to that of counsel for the plaintiff. Counsel categorises the case as a `David and Goliath case'. Counsel refers to portion of the judgment of Geoghegan J. in the Bloomer case where at p. 392 he stated:
"Reliance was placed by the defendants, and to some extent I think by the taxing master, on the amount of fees marked by counsel for the defendants. The defendants engaged two senior counsel and their combined fees are less than the fee I am now allowing senior counsel for the plaintiffs. I think that it has always been held that regard should be paid to the fees marked by the other side in a taxation but the courts have never gone further than that. I think that this was a more difficult action to mount and fight than to defend. The taxing master was clearly of that view himself, having regard to the substantial differential between the refreshers. Where two comparable commercial companies are litigating against each other the fees marked by counsel for the unsuccessful party may well be highly relevant as in that case there could be no extraneous circumstances affecting the amount of fees marked. But in a case such as this the two sides are in quite different positions and I think that little or no value can be attached to the evidence of the fees marked by counsel for the defendants."
With regard to the submissions of counsel for the defendants, reference is made by counsel to the allowance by the Taxing Master of the fees of an accountant (Item 300) in relation to pre-inspection advices. Counsel refers to a number of the specific allowances in respect of meetings with counsel.
With regard to the suggested course to be adopted by this Court, counsel submits that if I am disposed to uphold the defendant's case, I should refer the item or items in question back to Master Flynn.
In reply, counsel for the defendants submits that the defendants are entitled to know why the Taxing Master rejected the objections taken in to his taxation. It is submitted that the defendants are victims of a personal project of the Taxing Master. It is submitted that this court cannot ignore the views expressed by the Taxing Master on the judgments of Kearns J.
It is submitted that the Taxing Master's approach to rejecting comparators affected the entire of his ruling. Counsel submits that notwithstanding the length of the report of the Taxing Master the same lacks transparency as it does not explain why the Taxing Master allowed the amounts in the disputed items. It is submitted that what the Taxing Master says in his report colours the whole matter and that this amounted to a calculated disregard to the comparisons advanced.
Counsel takes issue with the suggestion that the Taxing Master engaged in a root and branch review. Counsel submits that the Taxing Master seized on a number of superficial aspects such as the number of witnesses, the number of folios and the book of authorities prepared by counsel for the plaintiff. Counsel refers to the categorisation of the action as being a complex competition law action. Counsel refers to the amended statement of claim as showing the true nature of the action and in this regard refers to the emphasis placed on the stress alleged to have been suffered by the plaintiff. In addition counsel refers in this regard to the plaintiff's affidavit and the particulars furnished of the plaintiffs claim. It is submitted that this documentation reveals the nature of the claim the defendants came to meet. Counsel submits that an issue arises as to whether the plaintiffs statement went beyond the terms of the action as pleaded. Counsel refers to the fact that the claim for aggravated damages cannot constitute a fresh cause of action. Counsel refers to s. 6 of the Competition Act, 1991 and submits that no such claim for aggravated damages was advanced in this case.
With regard to the claim for aggravated damages, counsel submits that the law in regard to the entitlement to same is settled law.
With regard to the remedy sought, counsel states that the defendants lack confidence in the capacity of Taxing Master Flynn to deal objectively with this case. With regard to the witnesses, counsel refers to the fact that a number of the witnesses were hostile witnesses. While the plaintiff had expert medical evidence the fee allowed to his expert economist was £500.
Counsel refers to the history of the discovery and the fact that in part it was premature and furthermore there was no documentation available in regard to a number of witnesses. There were three ring binders of documents discovered.
Conclusions
In the first place it is necessary for the Taxing Master to correctly assess the complexity of the case. If this is done correctly then he will be able to assess whether cases advanced as comparable are in fact comparable or even if not whether they assist in the assessment that has to be made by the Taxing Master.
While the Taxing Master has devoted much time to indicating his own thesis with regard to the appropriateness of the reception of comparative evidence or evidence of comparators, I am satisfied that this is an appropriate form of evidence to be given and this has been indicated in previous cases coming before the Superior Courts. Insofar as the Taxing Master rejected comparative evidence in this case on a blanket basis I am satisfied that he erred in principle. I am also satisfied that he overestimated the complexity of the plaintiff s case. In this regard I believe that he was induced into error by having undue regard to material including advices of counsel for the plaintiff which indicated a case which extended beyond the terms of the pleadings before the Court. I am also satisfied that the Taxing Master was induced to overestimate the case by reference to a statement of evidence of the plaintiff which he should not have admitted in evidence before him. This evidence was not given in court and accordingly it cannot form part of the material upon which the Taxing Master was required to make his assessment.
I am satisfied that the Taxing Master reveals a lack of appreciation of the fmer points of competition law. As in any branch of the law the question of expertise arises. However, assuming that the solicitor and counsel have the necessary expertise to undertake their responsibilities it does not follow that the work involved will be complex. The complexity will depend on the nature of the case. In examining the plaintiffs claim in this case I am satisfied that the allegations of anti competitive practices did not raise issues of great complexity. It is of course true that the plaintiff may have had difficulty in proving his claim and this may have been compounded by the fact that a number of the witnesses upon whom he proposed to rely would have been hostile.
I am satisfied that the allegations of price fixing did not involve any great complexity in the terms of the Competition Acts but the proof of the facts alleged may have proved difficult. The anti competitive nature of price fixing is clearly indicated in s. 4 of the Competition Act, 1991 and reflects the provisions of European Union law and in particular Articles 85 of the EEC Treaty (now Article 81 of the EC Treaty).
Section 4 (1) of the Act of 1991 provides:
4.-(1) Subject to the provisions of this section, all agreements between undertakings, decisions by associations of undertakings and concerted practices which have as their object or effect the prevention, restriction or distortion of competition in trade in any goods or services in the State or in any part of the State are prohibited and void, including in particular, without prejudice to the generality of this subsection, those which
( a ) directly or indirectly fix purchase or selling prices or any other trading conditions;
( b ) limit or control production, markets, technical development or investment;
( c ) share markets or sources of supply;
( d ) apply dissimilar conditions to equivalent transactions with other trading parties thereby placing them at a competitive disadvantage;
( e ) make the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which by their nature or according to commercial usage have no connection with the subject of such contracts.
I am accordingly satisfied that the Taxing Master erred in relying upon his conclusion that the area of competition law is a specialised area and a difficult area and concluding on this basis that the proceedings in question were exceedingly complicated. Competition law is a specialised area. It may present difficulties but it does not follow that an alleged blatant abuse of the Competition Acts renders an action involving same to be exceedingly complicated.
I am also satisfied that in the context of labour law the Taxing Master erred as he refers to the existence of a large body of legislation emanating yearly from the Department of Trade and Enterprise as apparently being relevant to the instant case. This reference and his reference to the area of law having become a `legal minefield' appears to bear no relationship to the facts of the instant case.
I am satisfied that the reference to the case involving sensitive facts appears to be irrelevant in an assessment of the complexity of the case. I am satisfied that counsel for the defendant is also correct where he identifies a further error in regard to the Taxing Master's belief that the case in question involved the constitutionality of bugging devices. Accordingly, I am quite satisfied that the Taxing Master erred in principle in overstating the complexity of the case as far as party and party costs were concerned. Having reached this conclusion, I am satisfied that he cannot have correctly assessed the comparators put before him.
With regard to the use of comparators it must be appreciated by the Taxing Master that he is bound to have regard to the principles of law arising in reviews of taxation by the Superior Courts. I am satisfied that these have been stated clearly in a number of cases, most recently in the case of Best v. Wellcome Foundation Ltd. (No 3) [1996] 3 I.R. 378 and in the judgment of Kearns J. in Gallagher v. Stanley Anor. (Unreported, High Court, 23rd March, 2001). I am satisfied that in the instant case the Taxing Master erred in not identifying reasons for rejecting the comparisons put before him. I am satisfied that in his thesis with regard to the reception of such evidence the Taxing Master is in error and in propounding the test which he suggests should apply before such evidence is received and in relying in doing so on a text book pertaining to a wholly different area he is in error.
It is clear that the area of taxation of costs, if described as a science, is not an exact science.
With regard to the use of comparisons, neither I nor any of the judges who have addressed the area of comparative evidence in the area of taxation, suggest a slavish approach to the adoption of same. As the area involved is not an exact science and as it is probable that few if any cases will be exactly the same, comparators must only be a guide to the assessment in question. However, I am satisfied that they are a most valuable guide. It must be borne in mind that where reference is made to solicitors acting on the basis of their experience they are called upon to make assessments on the basis of comparative cases in their own experience. I would reject any suggestion that those who adduce comparative evidence are lazy. However, as in all areas, care must be exercised and this includes the exercise of advancing appropriate comparative evidence.
With regard to the alleged importance of the case to the plaintiff, I am satisfied that the fact that he had secured alternative employment prior to the action being settled is a factor to be addressed, but no account appears to have been taken in regard to same by the Taxing Master.
With regard to the expertise of the plaintiff s solicitor, it appears that he had to place considerable reliance on the assistance of counsel and of a firm of accountants in the discharge of his responsibilities. This cannot be ignored. It is clear that discovery of documentation was a difficult process in light of the apparent lack of co-operation by the defendants but this fact should not be confused with the work of inspection of documents which may well have had to be undertaken even if discovery was granted on a voluntary basis.
I conclude accordingly that the Taxing Master erred in his assessment of the case and in particular with regard to its complexity and in his rejection in the manner in which he did of the comparative evidence put before him.
In light of this conclusion I have considered the allowance in this case. In deference to the plaintiff I propose remitting the assessment of the solicitor's general instruction fee back to taxation to be undertaken by Taxing Master Moran. I am satisfied that this is necessary in this case having regard to the approach of the Taxing Master to the taxation before him and the previous decisions of the Superior Courts and in particular the decisions of Kearns J. and Barron J. which he has criticised in circumstances where he was bound to follow the statements of principle laid down by the Superior Courts.
I am satisfied that the plaintiff's case has to be viewed as a personal injury action of some complexity as it brought into the reckoning aspects of labour law and competition law. I cannot agree with the assessment that this should be viewed as a competition law case. This was a secondary and ancillary aspect of the case. I believe that some reliance should be placed on the comparisons advanced by the defendants as they indicate how assessments have been made in other cases of comparative complexity. It is clear that all the comparisons cannot be equivalent to the instant case but they indicate a range of cases and the level of fees and allowances applying to same.
While the Taxing Master indicated that he was not disposed to accept comparisons where they arose from settlements between parties as opposed to taxations, I believe that he was in error in rejecting comparisons on this basis as I am satisfied that such settlements involving as they do experienced cost accountants may well be of assistance in the assessment of another case and cannot be rejected merely because the cases in question were settled between the parties without the necessity to proceed to taxation the Taxing Master.
With regard to counsel's brief fee I am satisfied that in all the circumstances the fee suggested by counsel for the defendants, namely £15,750 is an appropriate fee for the work done.