High Court of Ireland Decisions

A & L Goodbody Solicitors v. Colthurst & Anor [2003] IEHC 74 (5 November 2003)

 


THE HIGH COURT

Record Number: 2002 No. 286 S

Between:

A & L Goodbody Solicitors

Plaintiffs

And
Charles Colthurst and Tenips Limited

Defendants

Judgment of Mr Justice Michael Peart delivered the 5^th day of November 2003:

By Order dated 6^th November 2002, the Master of the High Court ordered that the plaintiffs be at liberty to enter final judgment against the first named defendant for the sum of €252977.13, being part of the sum claimed as due in the proceedings issued herein, and directed also that the motion seeking liberty to enter judgment as against the second named defendant together with the balance of the claim as against the first named defendant be transferred for hearing before a judge of the High Court.

Before this court now, in addition, is an application by way of appeal from that order, on behalf of the first named defendant, in respect of the sum for which the plaintiffs were given liberty to enter judgment.

As appears from the Indorsement of Claim on the Summary Summons issued herein on the 21^st March 2002, the plaintiffs seek to recover from the defendants and each of them the sum of €275,546.29 being the balance due by the defendants and each of them to the plaintiffs in respect of certain professional services provided over a number of years and in respect of a number of different matters. The total value of these services was €343,894.40 but some payments were made from time to time amounting to €68348.11, leaving a balance in the sum claimed.

The plaintiffs were instructed by Mr Charles Colthurst in relation to six separate contentious matters arising out of disputes which he had with his parents. Eventually all matters in dispute were settled between the various parties when the High Court matters came on for hearing in July 1999. Part of the settlement terms was that each side would bear their own costs. The second named defendant is a limited liability company used by the first named defendant in connection with some business interests of his in Blarney, Co. Cork, and that company was a party to two of the cases which were ultimately compromised, and is joined in the present proceedings so as to ensure that all necessary parties are before this court, as the first named defendant claims that some of the amount claimed by the plaintiffs is due by the company and some by him.

The Bill of Costs in dispute in these proceedings is a composite bill and does not make any division as to the amount due by the first named defendant and that due by the second named defendant. As far as the plaintiffs are concerned the instructions at all times came from the first named defendant, but the Bill itself is addressed to both defendants. The defendants have been requested to sign a Requisition to Tax but have not done so. The plaintiffs suggested a division of the bill as between the two defendants, but nothing ever came of the suggestion. At first the plaintiffs believed that the only dispute that the first named defendant had with the Bill of Costs was as to the amount of the fees marked by the two Senior Counsel and one Junior Counsel which he had instructed the plaintiffs to engage on his behalf. The plaintiffs were in correspondence with Messrs. Cyril O'Neill & Co, Costs Drawers engaged by the defendants in order to clarify that this was the only objection being taken to the Bill, but in October 1999 that firm indicated to the plaintiff that a detailed Bill of Costs was required, rather than the informal bill which had been furnished to the defendants in August 1999. This request was repeated in April 2000 as Cyril O'Neill & Co did not feel able to advise the first named defendant as to the fees in question without a detailed bill of costs. By letter dated 12^th April 2000 that firm clarified that objection to the Bill was not confined to the amount of Counsels' fees.

By letter dated 20^th December 2000 a detailed Bill of Costs was furnished to Messrs. Cyril O'Neill & Co. During February – April 2000, the plaintiffs Costs Drawers were trying to have some discussions with Cyril O'Neill & Co to see if some agreement could be reached. By letter dated 15^th May 2001, the plaintiffs wrote to the first named defendant indicating that they were prepared to accept a Bank Draft in the sum of €253,064.19 provided same was received within fourteen days from that date, in default of which they would institute proceedings to recover the entire sum as per the itemised Bill of Costs, together with interest thereon and costs. The first named defendant responded to that letter saying that Messrs. Cyril O'Neill & Co's enquiries into the Bill were not yet complete and referred to the fact that he was unhappy with the amount of the Bill. He also requested a copy of what he described as "each of your client's engagement letters both to myself and Tenips Limited" so that he could compare those terms with the services actually provided. He also stated that he was contacting the Law Society in relation to what fee would be fair and reasonable. The plaintiffs replied on the 29^th May 2001 stating that on three occasions in 1999 they had informed him of his right to have the Bill taxed, and agreed not to commence the threatened proceedings if a Requisition to Tax the costs was signed and returned to them within that time.

By letter dated 6^th June 2001, Messrs. Bill Houlihan & Associates, solicitors, wrote a long letter to the plaintiffs in which a large number of points of objection were made to the plaintiffs. These are as follows:

•    That copy documentation (being the plaintiffs' files) had been requested some time previously and had not yet been furnished.

•    That the fees notes which had been furnished by the plaintiffs to the defendants in August 1999 were not Bills of Costs drawn in accordance with Order 99 Rule 28(5) of the Rules of the Superior Courts, and that there is no obligation therefore to pay same.

•    That a solicitor cannot sue on foot of a Bill of Costs until the expiration of one month from its date, and that a client had a period of twelve months within which to demand to obtain a taxation calculated by reference to the date of that bill.

•    That in so far as a bill in proper form had been delivered in December 2000, the total of that bill is in excess of the bill purported to have been furnished in August 1999, and referred to the decision in Agritex Ltd v. O'Driscoll (1995) 2 ILRM 22.

•    That the plaintiffs have failed to furnish a copy of any letter of engagement setting out the terms of such engagement as required by section 68 of the Solicitors (Amendment) Act, 1994.

•    That the defendants' Costs Drawer had requested inspection of the plaintiff's files in the matters, such inspection had not by that date been concluded, and that until that inspection had taken place, those Costs Drawers could not discuss the question of those costs with the plaintiff's Costs Drawer.

•    That the Counsels' fees claimed to be due in the Bill of Costs have not yet been discharged by the plaintiffs and are therefore not due for discharge by the defendants.

•    That the Bill of Costs as furnished was raised only against the first named defendant, and not against Tenips Limited.

In relation to the last point, the plaintiffs subsequently furnished an amended Bill of Costs directing it also to the second named defendant, Tenips Limited, by letter dated 22^nd August 2001 and again referred to the fact they had sent a Requisition to Tax to both defendants in the event that they wish to have the Bill taxed, and warned that if the costs were not discharged within one month, or had not within that time been sent for taxation, proceedings would be issued.

By letter dated 7^th September 2001, Messrs. Bill Holohan & Associates responded, noting that the correspondence to the second named defendant had been sent to 1, South Mall, Cork, which is not the registered office of Tenips Limited, but rather is the office of the Accountants to the father of the first named defendant and alleges that this was a gross breach of confidence. The latter also informed them that the first named defendant was by then in correspondence with the Law Society in relation to a complaint about excessive fees and what was regarded as inadequate service, and that in view of the latter, proceedings were precluded until the hearing of that complaint had been determined.

The Bill of Costs was then re-served at the correct address, together with a requisition to Tax. A further letter was sent by the defendants' solicitor re-iterating much of what had been stated in their letter dated 6^th June 2001.

The Law Society by letter dated 17^th December 2001 dealt with the matter by giving its consent pursuant to section 9(5) of the Solicitors (Amendment) Act, 1994 to the issue of proceedings for the recovery of the fees claimed, and stated that any consideration of any alleged complaint as to excessive fees or inadequate service should await the outcome of those proceedings.

Proceedings were served on Messrs. Holohan & Associates in March 2002, and that firm by letter dated 17^th April 2002 again referred to the fact that the defendants had still not been furnished with copies of the plaintiff's files and that the defendants' defence of the claim by the plaintiffs was prejudiced.

Before the Master of the High Court, the defendant filed a replying affidavit sworn on the 28^th June 2002 wherein he makes a number of points including those which I have set out above. In addition he states that of the six sets of proceedings the subject of the Bill of Costs, one was a case in which he acted as Trustee of a Will, although he is no longer such a Trustee, and that he had sought advice from the plaintiffs on a number of planning matters as such trustee, and received such planning advice and also legal representation in relation to a planning matter. He also referred to the fact that in January 1999 he had discussed the question of mounting legal costs with the plaintiffs, and that at that time the amount in question was about £60,000, and that it was proposed that there would be regular interim payments made each month, and that the plaintiffs in a letter dated 15^th January 1999, indicated as follows:

"………as and when each particular set of proceedings concludes, we intend to have the solicitor/client costs for that case assessed by a cost drawer on our behalf and our ultimate bill of costs for that case would be in line with that recommendation with an appropriate credit (proportioned in all probability on payments made on account) in each case".

That affidavit goes on to state that the proceedings were all in due course settled, and that by letter dated 16^th August 1999 he received a purported bill of costs from the plaintiffs in relation not only to the proceedings but also to the planning matters. That bill was in the sum of €163,501.04, but that no reference is made therein to any payments made on account, and that in fact significant payments had been made in the sum of €66,243.05, and that he was at that time making efforts to see whether he or the second named defendant had made the payments, but he believed that most would have been made by the second named defendant.

He complains that no attempt has been made to divide the amount of the bills as between the various sets of proceedings, even though the plaintiffs had stated that they would do so, as appears quoted above, and that he is prejudiced as a result, since he instructed the plaintiffs in his personal capacity in only one of the proceedings, the others being either as Trustee or on behalf of the second named defendant, Tenips Limited. Accordingly, he submits that separate Bills of Costs should be prepared and furnished since the costs relating to the cases in which he instructed the plaintiffs as a Trustee should properly be a matter for the new Trustees since he is no longer a Trustee of the Will concerned, and that he should have no personal responsibility for the costs that may be due by Tenips Limited.

An affidavit was also sworn on 28^th June 2002 by Nora Colthurst who is a director and shareholder of Tenips Limited. She sets out matters therein which have already been dealt with above, but states also that the second named defendant engaged the services of the plaintiffs in relation to two of the six sets of proceedings referred to above, and also in relation to some planning matters, and that it is unhappy with the level of service provided and the fees charged. She states that it has made substantial payments on account and that she was in the process of going through the company's records to ascertain when and in what amounts these payments were made. She also repeats the assertion that separate Bills of Costs should be drawn in respect of the work done on behalf of the company, as opposed to the first named defendant. She states that she believes and has been so advised that the Bill of Costs furnished to Tenips Limited is not a proper Bill and that there has been no bona fide compliance with the provisions of section 2 of the Attorneys and Solicitors (Ireland) Act, 1849. Finally she states that any delay in this matter so far as Tenips Limited is concerned arises because of "the persistent and inexplicable failure of the plaintiffs to provide a proper and adequate Bill of Costs to the second named defendant".

The plaintiffs filed a further affidavit of Orla Joyce sworn on the 29^th August 2002 in response to the defendants' affidavits. She makes a number of points in relation to the issues raised by the defendants. Among these is the fact that at no time up to the 28^th June 2002 being the date of swearing of the defendants' replying affidavits, had it ever been suggested by them that separate bills of costs were required in respect of each individual matter dealt with by the plaintiffs. She maintains that this is simply another device to avoid having to discharge the costs. She says that as far as the plaintiffs were concerned the defendants were responsible for the costs and that it was a matter for the defendants amongst themselves to work out the proportion each would pay, given the nature of the work involved. She refers to correspondence between the parties in previous years, where the plaintiffs would have written to the first named defendant asking to whom (i.e. himself or Tenips Limited) he wished their bill to be addressed from time to time. She states that "when it suited the defendants to reserve the right to themselves to determine how and who would be the addressee of the Bill of Costs they reserved that right and exercised it".( see paragraph 3(h))

She refers to a letter from the plaintiffs to the first named defendant dated 30^th March 1998 wherein various interim bills of costs were sent for different matters, including a matter that was handled on behalf of the second named defendant. One of the interim bills was therefore addressed to Tenips Limited, and the plaintiffs stated in the second paragraph of their covering letter:

"it seems to me that this can reasonably be billed to Tenips if you so wish, but if you think it is more appropriate to bill yourself personally you might please revert to me and I can arrange to issue a replacement invoice."

On other occasions as averred to in paragraph 3(h) bills for work clearly undertaken by the plaintiffs for the first named defendant were in fact discharged with a cheque from Tenips Limited.

She also refers to a letter dated 22^nd July 1999 from the plaintiffs to the first named defendant wherein on the final page thereof they refer to the six sets of proceedings which had been settled a short time prior to that letter, and states towards the conclusion of that letter that a composite Bill would be furnished, but went on as follows:

"As there a number of proceedings involving Tenips Limited, I suggest that the notional costs attributable to items 5 and 6 could be billed to Tenips Limited together with 50% of the amount attributable to the costs of item 3. Perhaps you would liaise with Niall Welch to advise you that the apportionment of the VAT liability on this basis is in order before I prepare the formal bills."

I have been informed by Counsel for the plaintiffs that no reply was ever received to this letter, and it is submitted to me that this is evidence of a lack of bona fides on the part of the defendants in the manner in which they are now seeking to avoid payment for the costs involved.

That affidavit also deals with the objection by the first defendant that some of the costs are in respect of matters in which he was a Trustee, and that again this is a matter raised for the first time in the affidavit of the defendant sworn on the 28^th June 2001.

In relation to the question of whether a section 68 letter was ever written, Ms. Joyce acknowledges that she cannot locate any such letter on file. She states that this is simply another effort on the part of the defendants to avoid paying for the services which were in fact provided by the plaintiffs. She denies that the defendants suffered any prejudice by the absence of such a letter or letters since the defendants were regularly appraised of the costs situation, both at the outset of the proceedings in question, and during the course of same, and again refers to correspondence in relation to the matter, some of which refers to meetings where costs were discussed.

In a further affidavit sworn by the first named defendant on the 9^th October 2002, he takes issue with the latter point made about the meetings regarding costs, and says that at no stage was he ever told about the likely costs which would be incurred or the basis of charging costs. He says that the interim bills which were furnished from time to time by the plaintiffs could not have forewarned him of the level of costs which have now been sought.

As can be seen from the foregoing summary of the facts of this case, the defendants make a number of points, and Counsel for the plaintiffs has summarised correctly in his written submissions most of the issues which must be determined as a result of them as follows:

1. Whether the Bill of Costs served in December 2000 is a proper Bill of Costs in view of the fact that the total thereof appears to be greater than the Bill furnished in August 1999, and if that be the case, what is the effect of that.

2. Whether before a Bill for Costs can be furnished, which includes Counsel's fees, those fees must in fact be discharged by the solicitor.

3. Whether the failure by the plaintiff to furnish to the defendants a letter as provided for in section 68 of the Solicitors (Amendment) Act, 1994 is fatal to the recovery of costs.

4. The jurisdiction of the Court to grant judgment to the plaintiff or refer the Bill of Costs to taxation by the Taxing Master.

5. Whether any bona fide defence has been disclosed by the defendants to the plaintiff's claim.

I will deal with each of these issues in the order appearing.

1. Whether the Bill of Costs served in December 2000 is a proper Bill of Costs in view of the fact that the total thereof appears to be greater than the Bill furnished in August 1999, and if that be the case, what is the effect of that.

The Bills of Costs furnished by the plaintiffs to the defendants totalled the sum of €253,064.19, whereas the composite Bill of Costs furnished in December 2000 amounted to a sum of €270,838.85. At first glance therefore the second Bill appears to fall foul of the decision of Lynch J. in Agritex Limited v. O'Driscoll (1995) 2 ILRM 22. In that case the solicitor had deducted a certain sum for costs from the client's monies held by him in his clients' account. The client subsequently demanded a Bill of Costs. When provided, that Bill claimed an even higher amount than that which the solicitor had taken from the client account. In holding that this was not permissible, Lynch J. stated:

"If it were permissible for a solicitor who is ordered by the Court to prepare and deliver a formal Bill of Costs in a form suitable for submission to a Taxing Master of the High Court……… to increase the amount of his total claim by 60% as is the case here, I have no doubt that that would greatly inhibit the protection of citizens to require taxation of bills of solicitor and client costs delivered to them by their own solicitors.

I am of the opinion that the defendants are not entitled to deliver or furnish a Bill of Costs in respect of the matters in question in this case exceeding the total sum of £15,730.28".

However, I am satisfied that in the present case the defendants contention is simply more apparent than real, since the larger total of the second Bill is accounted for only because the first bill was a nett bill – in other words the total sought therein had taken into account payments made from time to time by the defendants in the sum of approximately €66,000. If one takes that figure off the total set forth in the second Bill of Costs, it is clear that in fact the second bill claims a figure significantly less than the total sought in the first bill. Therefore this point of objection must fail.

2. Whether before a Bill for Costs can be furnished, which includes Counsel's fees, those fees must in fact be discharged by the solicitor.

Counsel for the first defendant has referred the court to the decision of the Court of Appeal in Sadd v. Griffin (1908) 2 KB 510 which referred to the obligation on a solicitor to furnish his bill in respect of fees, charges and disbursements, and held that an item could not be regarded as a disbursement unless the item had been paid by the solicitor before the bill is sent. This particular matter was considered by Lavery J., delivering the judgment of the Supreme Court in The State (Keegan) v. District Justice De Burca (1963) I.R. 390 and the view that Counsel's fees must be discharged by the solicitor before they can be allowed on taxation was approved. This sometimes very onerous situation for solicitors was relieved by the legislature when it provided in section 27(5) of the Courts and Court Officers Act, 1995 as follows:

"On a taxation of costs as between solicitor and client it shall not be necessary to produce vouchers or receipts for the payment of any disbursements (including counsel's fees), but on the completion of the taxation no Certificate of Taxation shall issue until proper vouchers or receipts for disbursements have first been produced and vouched, and accepted by the Taxing Master or unless the parties agree or the Taxing Master decides that proper vouchers or receipts for disbursements need not be provided."

While Counsel for the plaintiff submits that this is a complete answer to the point raised by the defendants under this heading, Counsel for the defendants has submitted that this section has not changed the rule as to the time of payment, and has merely changed the rule as to when evidence of payment of disbursements may to be produced. He submits that the Taxing Master has simply been given a greater discretion as to when he may require evidence of payment in the form of vouchers or receipts, but that the rule emerging from the case-law as to the requirement that counsel's fees be paid before costs are taxed has not been altered by this section.

In my view, if Counsel for the defendants is correct in saying that the section does not have the effect of altering the requirement that a solicitor must himself discharge Counsel's fee before presenting a bill for solicitor/client costs for taxation, even when not in funds to do so, but rather means simply that the vouchers or receipts in respect of such payment to Counsel may be produced after taxation has been completed rather than before the Bill is presented for taxation, the statutory amendment has little or no meaningful purpose, since such voucher or receipt would be readily available at the time of presentation if the fees have been paid at that point in time.

In this regard also it is worth noting the position that pertained previously. That position is set out at page 403 of the judgment in The State (Kiernan) v. District Justice De Burca (supra) as follows:

"It is agreed that on the taxation of a solicitor and client bill of costs it is necessary to prove that disbursements claimed, including counsels' fees, were paid before delivery of the bill to the client, whereas on taxation between party and party it is sufficient to show that the disbursement was made before the taxation of the bill."

The requirement in relation to a solicitor and client bill was an even more onerous one than on a party and party bill, and the legislature has chosen in section 27(5) of the Courts and Court Officers Act, 1995 to address that issue in the way it did, and as I have already stated the interpretation contended for by the defendants herein would fail to give any meaningful effect to the section. The fact that in this case Counsel's fees have not been paid as yet does not therefore render the Bill of Costs invalid, and in my view therefore this point of objection by the defendants must fail.

3. Whether the failure by the plaintiff to furnish to the defendants a letter as provided for in section 68 of the Solicitors (Amendment) Act, 1994 is fatal to the recovery of costs.

Section 68 (1) of the Solicitors (Amendment) Act, 1994 provides as follows:

"68. – (1) On the taking of instructions to provide legal services to a client, or as soon as is practicable thereafter, a solicitor shall provide the client with particulars in writing of –

(a) the actual charges, or

(b) where the provision of the particulars of the actual charges is not in the circumstances possible or practicable, an estimate (as near as may be) of the charges, or

(c) where the provision of particulars of the actual charges or an estimate of such charges is not in the circumstances possible or practicable, the basis on which the charges are to be made,

by that solicitor or his firm for the provision of such legal services and, where those legal services involve contentious business, with particulars in writing of the circumstances in which the client may be required to pay costs to any other party or parties and the circumstances, if any, in which the client's liability to meet the charges which will be made by the solicitor of that client for those services will not be fully discharged by the amount, if any, of the costs recovered in the contentious business from any other party or parties (or any insurers of such party or parties).

Section 68 (7) of that Act provides also:

"(7) Nothing in this section shall prevent any person from exercising any existing right in law to require a solicitor to submit a bill of costs for taxation, whether on a party and party basis or on a solicitor and own client basis, or shall limit the rights of any person or the Society under section 9 of this Act."

The other provisions of section 68 are not relevant to the submissions made in these proceedings, save in so far as subsection 9 defines "charges" as including "fees, outlays and disbursements", and subsection (10) provides that the section shall apply notwithstanding the provisions of the Attorneys and Solicitors (Ireland) Act, 1849 and the Attorneys and Solicitors Act, 1870.

The plaintiffs accept that they have been unable to locate any copy of any such section 68 letter.

The defendants maintain that the absence of such a letter has the effect that the plaintiffs cannot therefore recover their costs, outlays and disbursements, since the requirement under section 68(1) is mandatory, even if such an effect is a draconian one. The plaintiffs contend however that if such a draconian consequence was intended by the legislature, the Act would have clearly stated it. They also submit that such an interpretation would render subsection (7) meaningless, since it provides that notwithstanding anything contained in section 68, nothing shall prevent any person from exercising any existing right to require a solicitor to submit a bill of costs for taxation. They say that this clearly shows that a situation was contemplated that even in the absence of a section 68 letter, a bill could be taxed, and that this is meaningless if the absence of such a letter has the effect of no costs being recoverable by the solicitor.

Counsel for the defendants has submitted that the purpose of section 68(1) is to ensure that the client is in a position on receipt of a bill to form an opinion as to whether it is a correct bill by reference to the letter setting out the charges or the basis of the charges which will be made for the service provided. They also submit that it is not unknown for an Act of the Oireachtas to be silent as to the effect of a mandatory section and for there nevertheless to be serious effects in the event of non-compliance, particularly in the area of planning legislation, and the court was referred to a number of cases in which this was found to be so, namely State (Elm Developments) v. An Bord Pleanala (1981) ILRM 108; Monaghan Urban District Council v. Alf-a-Bet Promotions Limited (1980) ILRM 64; and Blessington Heritage Trust Limited v. The County Council of the County of Wicklow and others (1999) 4 IR 571. In response Counsel for the plaintiff has submitted that these planning matters can be distinguished since they occur as part of an administrative process, whereas that is not the situation in relation to the question of costs.

In relation to subsection (7), Counsel for the defendants submits that the plaintiffs interpretation is incorrect, and that another interpretation is possible, namely that where a solicitor has complied with the provisions of section 68 (1), a bill can still be referred to taxation.

The defendants also submit that if the effect of failure to provide a letter as provided for in section 68(1) is not to deprive the solicitor of his right to recover his costs, the client derives no benefit from the section, since the obligation is rendered meaningless, and provides him with no protection.

Taking this latter point first, it is not correct that there is no sanction on a solicitor, or no redress for the client, if the letter is not sent as required by the Act

Firstly, the absence of such a letter is something which the Taxing Master may, if he wishes, take into account when deciding upon the appropriateness of the fees sought. If fees being charged are in excess of what the Taxing Master considers appropriate in the absence of prior notification of the basis of charges, it would be something he can have regard to , even if he might be prepared to allow the same fees where a letter had been written.

Secondly, the failure to comply with the requirements of the section is something which the Disciplinary Tribunal of the Law Society can have regard to in an appropriate case, and indeed has done so in recent times, resulting in the censure and fining of a solicitor who was found to have failed to comply with the obligations imposed upon solicitors by section 68.

In relation to the other submissions under this heading, I do not believe that section 68 was intended to deprive the solicitor, who has failed to send a section 68 letter, of his right to recover his costs when taxed, in spite of the fact that the section is worded in mandatory terms. I agree with Counsel for the plaintiff that if such were to be the consequence of failure to send the letter, it would have said so in clear terms given the seriousness of the consequence of failure to do so. The cases to which the defendants have referred the court are cases involving mandatory procedures laid down as part of an administrative process, and cannot in those circumstances be called in aid of their submissions under this heading. Section 68 is not part of an overall scheme created by the Act. Rather it is a "stand alone" section designed to put in place a number of requirements, intended to provide greater protection to clients of solicitors in the matter of costs, but are not intended as a substitute for the statutory role of the Taxing Master who is charged with the task of ensuring that a client is only charged appropriately for services rendered, upon a Bill of Costs being presented for taxation. The client's right to have all costs taxed in this fashion is the ultimate protection available, and the Taxing Master is fully empowered to take all relevant matters into account when performing that task, including the power to attach such significance to the absence of a section 68 letter as he deems appropriate in any particular case. There is of course also the right of a party dissatisfied with the determination of the Taxing Master to seek a review of the taxation by the High Court.

The defendants' objection under this heading must also fail.

I also favour the submission of the plaintiffs that subsection (7) of section 68 would be meaningless, and superfluous, if the interpretation put forward by the defendants was correct.

4. The jurisdiction of the Court to grant judgment to the plaintiff or refer the Bill of Costs to taxation by the Taxing Master.

At the core of this issue is the fact that the defendants have at all times failed to respond to a number of requests by the plaintiffs that they sign a Requisition to Tax the Bill of Costs furnished in December 2000.

Apart from some of the points already dealt with above, the defendants submit that the Bill of Costs furnished is not a proper one for taxation because it does not comply with the requirements for a Bill of Costs set out in Section 2 of the Attornies and Solicitors (Ireland) Act, 1849 ("the 1849 Act"). That Act sets out certain time limits following delivery of the Bill, within which the solicitor can sue thereon (i.e. one month), and within which the client can demand taxation thereof (i.e twelve months). A useful and detailed consideration of the combined effect of Sections 2 and 6 of the Act is contained in the judgment of McCarthy J. in The State (Gallagher Shatter) v. De Valera (1986) ILRM 3, which also refers to the inherent jurisdiction of the Court to refer a Bill to taxation.

Section 6 of the Act provides that after the expiration of that period, the court may, in special circumstances, refer the bill to taxation provided that the application to the court is made within twelve months after payment.

The defendants contend that none of these provisions begin to apply until such time as a Bill in proper form is delivered, since a client must be entitled to argue that the Bill is not in accordance with the provisions of the 1849 Act.

But, Section 2 of the 1849 Act provides, inter alia, that:

"... no attorney or solicitor……shall commence or maintain any action for suit for the recovery of any fees, charges or disbursements……until the expiration of one month after such attorney…… shall have delivered unto the party to be charged therewith……a bill of such fees, charges or disbursements."(my emphasis)

The defendants say that since the Bill herein is a composite Bill dealing with some matters for which the first named defendant is responsible, either in a personal capacity or as a trustee, and others for which the second named defendant is responsible, the Bill cannot be one which is "delivered to the party to be charged therewith". They submit that it is clear that the plaintiffs themselves have acknowledged this fact in the correspondence by furnishing separate informal bills to each defendant in August 1999. They contend therefore, that since the Bill is not in compliance with the 1849 Act, the Court cannot grant judgment on foot thereof, and neither can it be submitted for taxation, and that accordingly they cannot be criticised for failing to sign the Requisition to Tax. A further reason for not signing the Requisition is that the plaintiffs had failed, despite requests to do so, to furnish a copy of their files.

Counsel for the second named defendant, Tenips Limited, supported all the arguments put forward by Counsel for the first named defendant. He also referred to the fact that the plaintiffs had by letter dated 22^nd July 1999 indicated that separate bills would be furnished to each defendant. He also referred to the plaintiffs' letter dated 30^th March 1998 to the first named defendant, where reference was made in relation to a particular matter to the fact that certain items could reasonably be billed to Tenips Limited. He submits that the corollary of that is that there are items which cannot be reasonably be billed to Tenips Limited, and that accordingly separate Bills must be furnished, and that there can be no question of any joint and several liability to the plaintiffs on the part of each defendant. He also submitted that it would be an ultra vires act for Tenips Limited to assume responsibility for the liabilities of the first named defendant. However Counsel for the plaintiffs says that the Court has been given no evidence regarding the absence or otherwise of the powers of the company in this regard.

In response, Counsel for the plaintiffs submits that when considering the question of whether separate bills are required, the court must look at the arrangements which were agreed by the first named defendant in relation to fees. The plaintiffs say that at all times it was a matter for the first named defendant to decide for himself what fees were paid by him and what fees were paid by Tenips Limited. This is in fact what happened from time to time in relation to the interim bills furnished.

The Court was referred to the powers of the Taxing Master as set forth in Order 99 rule 25 of the Rules of the Superior Courts, which states as follows:

"A Taxing Master may, for the purpose of taxing a Bill of Costs, summon and examine witnesses, administer oaths, direct production of books, papers and documents, require any party to be represented by a separate solicitor, and generally direct any party to the Taxation to do such acts as he may consider necessary."

Counsel submits that while it may very well be desirable in some cases for separate bills to be delivered, it is not so in this case, and that the Bill as furnished can be referred to taxation in its present form, and that the Taxing Master has power, if necessary to issue more than one Certificate of Taxation if so required, by virtue of the provisions of Order 99 rule 38(1) and rule 38(3) of the Rules of the Superior Courts, and to allocate costs as between the various parties before him. He referred the Court to a passage in Gill's Notes on Costs at page 83 of that work where it states:

"Separate Certificates – When necessary two or more certificates may be issued for one bill of costs. In such a case it is usual to allow the extra costs incurred."

5.Whether any bona fide defence has been disclosed by the defendants to the plaintiff's claim.

The only possible point of defence which may have been made out by the defendants herein relates to the question as to whether the Bill of Costs as furnished, being one related to 6 separate pieces of litigation and/or planning matters, and in respect of which from a technical point of view instructions were received on behalf of two separate and distinct legal entities, namely the first named defendant, Charles Colthurst and the second named defendant, Tenips Limited, is a proper Bill of Costs for the purpose of being presented to the Taxing Master for the purpose of taxation.

However, I can find nothing in the 1849 Act or in the Rules of the Superior Courts which specifically excludes a composite Bill of this kind being presented for taxation. This type of situation is most likely to arise on a solicitor/client bill of costs, since normally speaking there would be only one piece of litigation involved in a party and party bill. I doubt if this is the first occasion on which more than one item has been included in a solicitor/client bill, but in this case there are in fact two separate legal entities who are the clients and in different matters, as well as the other factor that the first named defendant states that some of the matters relate to him in his capacity as Trustee of a trust of which he is no longer a trustee. It is in relation to these aspects that perhaps, from a purely practical viewpoint, the Bill in its present form may present a difficulty to the Taxing Master. But this court is not able to state this with any certainty. The taxation of costs is a specialized area of work and it would be entirely inappropriate for this court to determine finally whether the Bill in its present form is one that is properly capable of taxation from a practical point of view, even if, as I have decided, there is nothing about it which appears to be in conflict with the 1849 Act or the Rules of the Superior Courts. I am conscious that Order 99 of the Rules of the Superior Courts gives the Taxing Masters extensive powers which equip them to carry out their function even in connection with the most complex of bills.

Since I have found as I have in relation to the points raised by way of Defence by the defendants, I am satisfied that the proper course for the defendants to have adopted in this matter was to have signed the Requisition to Tax so that the Taxing Master could carry out his function of ensuring that the costs claimed as due by the plaintiffs were reasonable. If on that taxation, matters arose such as those which I have suggested, they could have been addressed a long time ago.

I propose therefore ordering, pursuant to the inherent power of the Court so to do, that the Bill of Costs in its present form be presented by the plaintiffs for taxation by the Taxing Master, since all other points of objection by the defendants have failed. I also order that upon taxation thereof being completed, and a Certificate or Certificates of Taxation issuing, the matter is to be re-entered before me so that any question arising as to a division of liability as between defendant parties can be addressed.

However, in the event that the Taxing Master finds that the task of taxing the Bill in its present form is one which cannot be properly carried out, and that a separate and distinct bill is required in respect of each matter, then I direct that such bill or bills be prepared, delivered and presented for taxation, and upon taxation thereof, the matter be re-entered before me for the purpose of addressing any question as to granting judgment against any parties.

I believe that it is appropriate that the Taxing Master should issue a Certificate of Taxation in respect of those costs, outlays, and disbursements due by the first named defendant in his personal capacity, and another in respect of those costs due by him in his capacity as a trustee, and a separate Certificate of Taxation in respect of costs, outlays and disbursements due by the second named defendant, Tenips Limited.

I shall reserve the entire question of costs for the moment in order to await the outcome of the taxation of these costs, and I will deal with that matter upon the matter being re-entered in due course.