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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Mohamed & Anor -v- Governor of Cloverhill Prison & Anor [2007] IEHC 394 (30 November 2007)
URL: http://www.bailii.org/ie/cases/IEHC/2007/H394.html
Cite as: [2007] IEHC 394
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Judgment Title: Mohamed & Anor -v- Governor of Cloverhill Prison & Anor Composition of Court: Murphy J. Judgment by: Murphy J. Status of Judgment: Approved |
Neutral Citation Number: [2007] IEHC 394 THE HIGH COURT [2005 No. 852 SS] BETWEEN/FOUFIK BEN MOHAMED APPLICANT AND GOVERNOR OF CLOVERHILL PRISON RESPONDENT THE HIGH COURT [2005 No. 950 SS] BETWEEN/KEITH CAFFREY APPLICANT AND GOVERNOR OF MOUNTJOY PRISON RESPONDENT Judgment of Mr. Justice Roderick Murphy dated the 30th day of November, 2007. 1. Issue The respondent in each of these matters seeks an order of the High Court pursuant to O. 99, r. 38(3) of the Rules of the Superior Courts reviewing the taxation of the applicants’ costs and for an order providing for the costs of the review of taxation. Both matters involved applications for an enquiry under Article 40.4.2 of the Constitution where each of the applicants was successful and where the respondent was ordered to pay each of the applicants’ costs when taxed and ascertained. In Mohamed, the applicant was an Algerian national without documentation who presented at Immigration and was arrested on 13th June, 2005 and brought before the District Court on 14th June, 2005. In Caffrey, the applicant was arrested on foot of warrants issued in 1997 and 1998 for non-payment of fines as detailed in the affidavit of Mr. Declan Fahy, his solicitor. The application is based on the pleadings and proceedings in both matters, the bill of costs, respondent’s objections and written submissions in support of those objections and the applicants’ written replying submissions, the transcript of the hearing of the objections and the Taxing Master’s rulings of 28th June, 2006, 4th July, 2006 and 21st May, 2007 together with his report are relied upon. Similar pleadings and proceedings formed the basis for the second matter. By order of Mr. Justice MacMenamin dated the 17th day of June, 2005 in the first mentioned matter, the court was of the opinion that the applicant’s detention was not justified and ordered that he be released forthwith from such detention. It was further ordered that the applicant recover from the respondent the costs of the application and order. A similar order was made by Ms. Justice Finlay Geoghegan on 1st July, 2005 in the second case. Pursuant to that order the general instruction fee of the applicant’s solicitor was claimed in the sum of €14,000 and €14,402 respectively net of VAT and fixed by the Taxing Master in the sum of €9,500 and €9,000 respectively. 2. Proceedings 2.1 The proceedings related to an application for an inquiry pursuant to Article 40.4.2 of the Constitution as to the lawfulness of the applicant’s detention. An application for a conditional order came before the court on 16th June, 2005 and 30th June, 2005 respectively ex parte when it was ordered that the Governor, as it is phrased in such application, “do produce the body of the applicant and do certify in writing the grounds of his detention” before the court on the morning following. On the return date no cause was shown by the respondent. In such circumstances the applicant was entitled to an order making the conditional order absolute (see O. 84, r. 10 of the Rules of the Superior Courts). The matter of Mohamed was heard ex parte on 16th June, 2007 and returned before the High Court on 17th June, 2007 where no cause was shown. The matter was dealt with by a short hearing for 30 minutes. The court ordered that the applicant be released and also that he be entitled to recover from the respondent the costs of the application and order. In Mohamed it was estimated that between eight to ten hours were expended on the file. In Caffrey the necessary affidavits and exhibits were drafted and prepared and counsel briefed in the afternoon of 30th June, 2003. Application for a conditional order was made the following morning and returned before the High court that afternoon when the State indicated that they were not showing cause. The applicant’s legal cost accountant estimated the total time expended to be approximately nine hours. 3. The State’s case 3.1 The only matter which the court is now concerned with is the instruction fee claimed of €14,000 which the respondent says is considerably overstated in the circumstance of the case. The applicant was fully aware of all issues for the purpose of the application for the conditional order. No further issues arose and no further documentation was briefed, with the exception of the conditional order when the matter came before the court the following day. The respondent submitted that there was a distinction to be drawn between judicial review proceedings and Article 40 proceedings. Within the former there is a difference at the application for leave stage and the hearing of the judicial review proceedings. There is a further distinction between a fully contested judicial review proceeding and one in which there is no contest. 3.2 Order 84 of the Rules of the Superior Courts states:
8. Where cause is shown it shall be by affidavit. The affidavit shall in addition to the facts deposed to, state concisely the grounds relied on as cause. The affidavit shall be filed in the Central Office and notice of filing shall be served on the applicant or his solicitor within the time allowed for showing cause. 9(1) Where cause has been shown as aforesaid the applicant may apply to the court by motion on notice to make absolute the condition order, in whole or in part, notwithstanding the cause shown. 10. Where cause has not been shown in the manner and within the time aforesaid the applicant shall on filing an affidavit of service of the conditional order and a certificate that no cause has been shown, be entitled to obtain a side bar order making the conditional order absolute (unless the conditional order shall have otherwise directed).” 3.4 Order 99, rule 37(22)(2)(6) refers to “the time and labour expended by the solicitor” is a determining factor. The State submits that the Taxing Master, in equating Article 40 applications with the seven judicial review cases referred to, in which he contends that they also deal with a person’s right to freedom and liberty are not applicable in the present case. The work done in judicial review proceedings greatly outweighs the work done in the instant case. Notwithstanding the instruction fee claimed exceeds the instruction fee recovered in six of the seven judicial review proceedings. The instruction fee in the six averaged €11,370. The instruction fee for the seventh was €14,500, giving an average for the seven of €11,820. In the instant case there was no complexity, difficulty or novelty; the time expended by the solicitor was not substantial nor was the number of documents. While it was accepted that the matter was important and dealt with in the High Court, it did not involve any amount or value in property or money nor was there any other fees or allowances payable which would have reduced the work in respect of which the instructions fee was calculated. In respect of the general instruction fee, it was well established that the primary focus when assessing a fair and reasonable instructions fee was the specific nature and extent of the work done and thereafter the consideration of comparators. Placing an emphasis on the comparable cases rather than primarily focusing on the facts and consequent work done would do an injustice to the plaintiff and give it a distorted view of the quantum of the fee. It is the nature and extent of the work done as provided for under s. 27 of the Courts and Court Officers Act, 1995 that is appropriate. The very nature of Article 40 applications necessitates a short, swift period of time as the deprivation of liberty is the abnegation of a fundamental constitutional right. This is accounted for the summary of the work involved referred to in the bill of costs. The court was referred to Leahy v. The Governor of Cloverhill Prison and also Sheehan v. Reilly [1993] 2 I.R. 81. The same issues arise in judicial review proceedings for orders of certiorari quashing the decision of the Refugee Appeals Tribunal. The applicant should be fully indemnified in respect of all costs. In Quinn v. South Eastern Health Board it was held at para. 5 that:
4. Taxing Master’s decision dated 28th June, 2006. The Taxing Master recited the order for costs outlined the facts and the work undertaken in each case. He recited the submissions of each party otherwise each decision similarly deals with counsels’ fees, with which we are not ultimately concerned. However, it is relevant that the Taxing Master concluded as follows at p. 36 of 42 of Mohamed and pp. 43/49 in Caffrey in the context of assessing counsels’ fees, as follows:
(a) the complexity of the item or of the cause or matter in which it arises and the difficulty or novelty of the questions involved; (b) the skill, specialised knowledge and responsibility required of, and the time and nature 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 was 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. 5. Taxing Master’s second ruling of 24th July, 2006 The second ruling is entitled Brennan v. The Governor of Cloverhill Prison. It deals with nineteen other cases referred to in the schedule in order to clarify the Master’s ruling in Mohamed v. The Governor of Cloverhill Prison and Caffrey v. The Governor of Mountjoy Prison. Counsels’ fees were no longer an issue. The ruling dealt only with the determination of the instruction fee in the schedule. In Mohamed, item 29, the claim in the bill of costs was €14,000. Mr. Quann, for the State, proposed €5,000 to €6,000. The Taxing Master allowed €9,500. In Caffrey, the amount claimed was €13,150. Mr. Galligan, on behalf of the State, proposed €6,000 and the Master allowed €9,000. 6. Hearing before the Taxing Master, 20th March, 2007 in conjoined cases The Master summarised the submissions made. Mr. Galligan, on behalf of the respondent submitted that the time element was not sufficiently considered by the Master in reaching his decision. The Master had stated that the facts of the case were “not vast and not the most complex in nature”. Mr. English, on behalf of the applicants, submitted that the respondents were trying to adopt a blanket approach to all the cases and were not, despite their submissions, treating each case on its own merits. He had not at any stage advanced the time element or submitted that costs should be assessed on a time basis. The Master had remarked that there were no time records, that all of the cases were counsel-driven. The applicant disagreed with that entirely and rejected that “handsome fees” had been allowed to counsel on that basis. In reply, Mr. Galligan had said that it would be quite easy for the applicants to estimate the amount of time that was involved in those cases, not solely or exclusively. The Taxing Master had researched High Street figures in the region of €500 to €600 per hour and asked that both parties estimate the amount of hours. Mr. Galligan contended that, not alone were the Caffrey and Mohamed cases counsel-driven so were other Article 40 cases that were listed before the Taxing Master. 7. Ruling of 21st May, 2007: Mohamed v. Governor of Cloverhill Prison Having dealt with the background and the objection by the respondent, the Taxing Master referred to the thirteen items of work carried out from instructions on 15th June, 2005 to attending the court on 16th June and attending the prison officer and the translator. In respect of the instruction fee the Taxing Master noted that the respondent had placed little emphasis on the nature and extent of the work at the ex parte stage. The Master then stated:
Also, the ex parte stage is made that more difficult in that the Respondent is on notice of the application and so the applicant must have everything prepared with the utmost care. This initial stage in the Article 40 application may take half a day, whereas the ordinary judicial review ex parte stage may take a few minutes. The initial stage in these applications is usually fully contested by the Respondent and thus this represents a difficult hurdle for the Applicant to clear. Prior to the application coming on for consideration of granting leave all papers in respect of the application must be filed in the Central Office and served upon the Respondent. The Respondent may or may not wish to put in a Replying Affidavit and the entitlement of the Respondent to consider such an affidavit departs from the usual practices in Judicial Review cases.” In Caffrey, also on 21st May, 2007, he believed that the respondent had made no meaningful proposition to upset the allowance made in respect of that instruction fee. 8. Decision of the court 8.1 The categorisation by the Taxing Master of the Mohamed application appears from the above as if it were a judicial review of an asylum decision. The ex parte application was, of course, an Article 40 application and not an application to review the decision of an inferior tribunal in an asylum case. The reference to the statement of grounds usually showing the applicant’s chance of success is contrasted with “these asylum cases” which require “a considerably high standard of proof than in the normal Judicial Review cases”. There may also be a sense of misunderstanding in the reference to the ex parte stage being more difficult in that the respondent is on notice of the application requiring the applicant to have everything prepared with the utmost care. This is, of course, not so in the present case nor, indeed, in the ordinary ex parte application. Accordingly, the reference to “this initial stage in the Article 40 application” taking half a day in contrast with the ordinary judicial review ex parte taking a few minutes, appears to be mistaken. It is common case that the ex parte application took a very short time. The order absolute itself, the following day, took 30 minutes in the absence of cause shown. The Taxing Master refers to a medical analogy by referring to such application being “a legal accident and emergency application” with an additional difficulty of an interpreter/translator being required. The borrowing of such a medical analogy may have limited application in terms of immediate urgency and costs claimed. Accident and emergency staff have also to deal with patients who do not speak English or who, indeed, may be unconscious. The reference of accident and emergency might equally apply to proceedings before District Judge McDonald on 7th March, 2006 when the applicant was unrepresented when brought before the Bridewell Court. The applicant was assisted by the translator, the prison officer and the Gardaí who arranged the attendance of the solicitor who made the ex parte application a week later. The Taxing Master referred to s. 27 and referred to the “Refugee Act, 1996” and the provisions of the Geneva Convention and decisions made in countries such as the United Kingdom, Canada, Australia and other countries bound by the Convention as well as principles of Irish law in relation to the complexity of the matter which “surely must show that the leave stage itself is a complicated matter and thus complexity is above that of the ordinary judicial review case”. In arriving at a sum sufficient and adequate to produce a fair and reasonable remuneration for the instruction fee for the solicitor, the Taxing Master stated that such cases involving a citizen’s liberty must rank with similar legal accreditation to those of Chancery matters. While liberty of the person may, indeed, be a greater good than a mere property right, it is not clear how this can be the basis of comparison for an instruction fee. The Taxing Master said that he had set out the novel features of the application and the ground that had to be covered in successfully challenging the applicant’s detention, which resulted in a change in legislation. It is not clear what legislative change affected Article 40 rights. There have, of course, been statutory provisions in relation to asylum cases. 8.2 The Taxing Master was of the view in respect of both cases that “this was not simply a case driven by counsel but rather all lawyers in this case worked at equal measure”. The Master accepted that his earlier finding on 28th June, 2006 that “to all intents and purposes” this was a counsel-driven case did not fairly describe the part played by the solicitor in the preparation and administration stages of the applications. The reasons given do not appear to justify the change in the absence of detailed task and time records. It is difficult to objectively reconcile the changed emphasis. The explanation given was that the Taxing Master that, having had an opportunity of carrying out a “root and branch” examination, was of the view that no one lawyer was equipped to advance those matters before the High Court. This, according to the Master, was borne out in paras. 4.1 to 4.6 of the applicant’s written submissions. In fact, the Taxing Master said that he was not in a position to carry out a root and branch examination because of the lack of documentation (and evidence of time spent). Moreover, the references in paras. 4.1 to 4.6 of the applicant’s replying submissions to the objections filed by the respondent dated 30th January, 2007 under the heading “extent of the work done” refers to briefing counsel for conditional order application and for order absolute application, being two of sixteen items. Those paragraphs, as summarised above, deal with the complexity of constitutional, immigration, community and criminal law as well as the European Convention on Human Rights but make no reference to interaction with any other lawyer or counsel. The submissions deal with the degree of responsibility borne by agents in taking initial instructions. Reference is made to the responsibility of the solicitor dealing with the deprivation of liberty of the client. While one can, of course, understand an emphasis on the solicitor’s work in respect of instruction fees and the emphasis on counsel in relation to the earlier taxation of counsel’s fees where the Taxing Master had described the case as counsel-driven, there must be consistency. There would appear to be logical inconsistency in maintaining, for the purpose of counsel’s fees that the application was counsel-driven and, in a separate application, now before this Court in relation to solicitor’s instruction fee, that it is solicitor-driven as is indicated in the applicant’s written submissions. 8.3 The Taxing Master referred to Maltyby v. D.J. Freeman & Company [1978] W.L.R. 431 where Walton J. stated:
Fees and earnings are determined by the market. There are, of course, distortions in the market, depending on the degree of monopolistic or monopsonistic restrictions which exist but this is not a matter which arises in the present application. 8.4 The starting point is the instruction fee charged to the client in respect of which the client is responsible. In many cases, however, the client, especially in Article 40 cases, may not himself or herself be capable of discharging the fee while some lawyers – solicitors and barristers – may, at times, take on such cases on a pro bono basis, others work on a contingent basis which may, in turn, be either what is determined by agreement or on taxation or as a contribution to the overall solicitor/client costs. There is no evidence as to whether a fee was agreed, or even indicated to the applicant as being the cost of the application. Considering the urgency of the Article 40 application and the status of the applicant himself it may have been that there was no such agreement or indication. However, it does seem to the court that the fee or the notional fee agreed or indicated must be the starting point for the State’s indemnity to operate in the event of an award for costs being made against it. Why should an indemnifier be asked to pay a fee to be agreed or taxed in default of agreement by a defendant when, in fact, a plaintiff would never be asked to discharge such a fee? The Taxing Master said that consideration must be given to the principles elucidated in his ruling of 28th June, 2006. He invited submissions on the return date as what the applicant and respondent considered appropriate with regard to the quantum of fees in the bill of costs in the Mohamed v. Governor of Cloverhill Prison matter (2005 No. 852 SS). 8.5 Each case had to be dealt with on its merits. The Taxing Master referred to Donaldson J. in Property and Reversionary Investment Corporation Limited v. Secretary of State for the Environment [1975] 2 All E.R. 436 at 443 who stated that:
In the present cases it would appear that the Taxing Master did not take the agreed time of nine hours and eight to ten hours into account, notwithstanding the agreement of the parties. 8.6 The Taxing Master said that he was required to conduct what was described as a root and branch examination on the brief and papers to ascertain the work carried out by counsel and solicitor. It was not possible to conduct such an examination. He had not been given the file and briefing documents in Bryan v. Governor of Mountjoy (one of the nineteen cases). There were no working papers, notes or memos or otherwise of counsel’s input or any interaction of counsel with the applicant’s solicitor with the exception of the furnishing of a fee note, nor any written briefing of counsel. In the absence of such documentation it was difficult to carry out the statutory function under s. 27 of the Courts and Court Officers Act, 1995. However, he had previously stated that the nature of an Article 40 application leant itself to a short, swift skirmish where the litigious ground is decided in two short applications in court over one or two days. 8.7 In relation to the instruction fees in the nineteen cases tabulated by the Taxing Master, the court is conscious that the brief comments alone do not necessarily indicate the work, responsibility or complexity of each matter. Only two were referred to as “Deportation/Unlawful Detention”. The costs claimed were €23,500 and €20,000 and the Master allowed €12,000 and €10,000 respectively. The amounts claimed were, in all cases, in excess of the amounts allowed. The amounts allowed varied from €7,500 to €13,500. The latter was for three days’ work, including a weekend. The Taxing Master made an allowance of €9,000 in eleven of the twenty cases, €9,500 in two of the cases and €10,000 in a further three cases. In no case did the Taxing Master make a determination either in the amount claimed or in the amount proposed by the State. It is not clear whether all cases involved conditional and absolute orders which were contested. Eight are noted “Conditional Order” and “Order Absolute”. In The State (Aherne) v. Cotter Walsh J. stated:
the Master should have taken into account the agreed estimate of time spent in relation to the work done as claimed in the bill of costs in his ultimate assessment, particularly where each case was deemed to be counsel driven. While the court is reluctant to interfere with the discretion of the Taxing Master, it would seem that there were some inconsistencies in the determination of each matter. 8.10 I will hear counsel as to whether the matter should be remitted to the Taxing Master or by the court. |