Supreme Court of Ireland Decisions

1. This appeal arises from the taxation of costs in the above entitled action which was initiated in the High Court and subsequently went on appeal to this Court. Following the Order for Costs made in this Court, to which I will refer later, all the costs went to taxation. The taxation was carried out by Taxing Master Moran. Somewhat unusually, the Taxing Master, in addition to the customary submissions by the Legal Costs Accountants on each side, was presented with oral evidence given on behalf of the plaintiffs both by Senior Counsel who appeared for the plaintiffs, Dr. White, and by the plaintiffs solicitor, Mr Denis O’Sullivan.

2. The Taxing Master gave his determination on the matter on 28th May 1998. Both sides carried in objections. Having considered these objections the Taxing Master gave his written review of the taxation on the 4th March 1999. The plaintiffs then applied to the High Court to review the taxation. The High Court (Geoghegan J.) carried out a review of the Master’s taxation. The learned High Court judge in his reserved judgment given on 3rd December 1999 increased the amount of the brief fee for the High Court action to be paid to senior and junior counsel but otherwise confirmed the determinations of the Taxing Master. It is from the judgment of Geoghegan J. that the plaintiffs have appealed to this Court.

3. The factual background to the proceedings is set out by the learned High Court judge in his judgment. The plaintiffs were graduates of Queen’s University Belfast who had attained the degree of Bachelor of Laws (LL.B.). They sought a declaration that they were entitled to the same recognition and the same exemption from the first part of the final examination of the Law Society as was afforded to graduates of the National University of Ireland, the University of Dublin and the University of Limerick who held a primary degree in law of one of those universities or who held a primary degree partly in law and partly in another discipline. They also sought a declaration that the first and second named defendants were guilty of wrongful discrimination as regards graduates in law of Queen’s University Belfast. The plaintiffs also made a claim for damages including aggravated and/or exemplary damages for conspiracy and/or breach of duty and/or breach of statutory duty and/or for alleged wrongful interference with the right asserted by some of the plaintiffs and/or breach of duty under the laws of the European Union and under the European Convention of Human Rights. The proceedings were heard in the High Court before Laffoy J. A number of issues were raised at the hearing but the only issue on which the plaintiffs were successful was in establishing to the satisfaction of the trial judge that Regulation 15 of the Law Society Regulations of 1991 (which excluded Queen’s University from the exemption) was invalid as being discriminatory and contrary to Article 6 of the Treaty of Rome. Laffoy J. however refused to make a specific declaration to that effect and made an order for costs in favour of the Law Society.

4. The plaintiffs appealed her order to this Court. The appeal was listed for hearing but prior to the hearing, on 3rd October 1995, the Law Society announced that it had agreed to amend the relevant regulation and to extent the exemption to graduates of the Queen's University Belfast. When the appeal came before this Court, therefore, the main issue was the question of costs. The plaintiffs also sought a specific declaration that the original regulation was invalid as being contrary to Article 6 of the Treaty of Rome. In addition the plaintiffs pressed for an entitlement to damages for conspiracy. The decision of this Court was given in an ex-tempore judgment by Hamilton C.J. on the 6th February 1996. In this judgment the Court robustly rejected the plaintiffs claim for damages and all allegations of conspiracy, but allowed the appeal to the extent of making the declaration as to the invalidity of the regulation and awarding to the plaintiffs against the Law Society the costs of the High Court on the basis of an eight day hearing and limited to the issue of the invalidity of the regulation having regard to the Treaty of Rome. The plaintiffs were also awarded half the costs of the appeal but excluding any costs in connection with written submissions made to the Supreme Court. This exclusion was based inter alia on the nature of the allegations made against the Law Society and against individual members of the Society which were contained in the said submissions. The Order for Costs made by this Court on 6th February 1996 was as follows:

5. The taxation of costs then proceeded as already set out above.

6. When the review of taxation came before Geoghegan J. in the High Court four items were in dispute, as follows:

7. It was not, of course, in dispute that junior counsel would receive the normal brief and refresher fees of two thirds that of senior counsel.

8. As far as the items in dispute were concerned, the decisions of the Taxing Master were as follows:

9. In the High Court the plaintiffs sought an upward revision of all these fees. The learned High Court judge, having considered the submissions of counsel and surveyed the applicable law, upheld the determinations of the Taxing Master with regard to the solicitor’s instruction fee, senior counsel’s refreshers in the High Court, and senior counsel’s brief fee in the Supreme Court. For a number of reasons, which he set out in his judgement, Geoghegan J. increased the amount allowed for senior counsel’s brief fee in the High Court from £12,600 to £21,000.

10. In allowing this increase the High Court judge firstly stressed, as did the Taxing Master, that this was a case which was largely barrister-led. At page 9 of his judgment he stated:-

11. Geoghegan J. considered that in the preparation of the case Dr White had carried out work which would normally be done by a solicitor. There was no suggestion of unprofessional conduct. The learned judge stated (at page 10):

12. In the proceedings brought by the plaintiffs specialised knowledge, which was possessed by Dr White, was required in comparing the law of the Republic of Ireland with the law of Northern Ireland. The judgment concluded that there seemed “little doubt that he (Dr. White) put an exceptional amount of sweat and energy into the preparation and conduct of the case”.

13. Geoghegan J. also considered that the Taxing Master fell into error in failing to appreciate the true importance of the case. At page 12 of his judgment he dealt with this factor:

14. The High Court judge also believed that the Taxing Master had laid too much stress on the word “issue” in the costs order made by this Court. He said that what was allowed to the plaintiffs in reality was the costs of an eight day action claiming the invalidity of the relevant regulation on the grounds of discrimination.

15. Finally Geoghegan J. dealt with the question of comparison with the fees marked by senior counsel for the Law Society. Both before the Taxing Master and in the High Court it had been submitted on behalf of the defendant that the brief fee to be allowed to senior counsel for the plaintiffs should be related to that charged by each of the senior counsel appearing for the defendant, which fees were considerably lower. The learned High Court judge disagreed with this approach. He concluded his judgment thus:

16. In a lengthy notice of appeal to this Court dated 20th December 1999 the plaintiffs seek an upward revision of all the fees as determined by the High Court. The grounds of appeal are many and varied. The first three grounds deal with a statement made by the High Court judge in the course of his judgment that at the material time Dr. White, as well as being a senior counsel of the Irish Bar, was a member of the academic law staff at Queen’s University Belfast. It is stated in the grounds of appeal not only that this is inaccurate but also that this finding “was fundamentally unfair and unjust and wrongly disparaged said senior counsel’s reputation and good name” .

17. Ground 4 in the notice of appeal challenges the finding by the High Court judge that senior counsel “devised, prepared, managed and ultimately fought” the action. Grounds 5 to 14 challenge in various ways the findings of the High Court in regard to the amount and nature of the work done by senior counsel in the case.

18. Further grounds deal with the decisions of the High Court regarding the solicitor’s instruction fee, the refreshers allowed to counsel, and counsel’s brief fee in the Supreme Court.

19. In his detailed written submissions to this Court senior counsel for the plaintiffs, Dr. White, dealt with the background to the proceedings and their history. In both his written and oral submissions he laid great stress on the evidence given by both himself and Mr O’Sullivan, solicitor for the plaintiffs, before the Taxing Master. This evidence concerning the level of their fees, he said, had not been adequately challenged by the defendant Law Society, nor had the Society brought proper evidence to contradict it. Dr. White argued that in the absence of countervailing evidence the Taxing Master was bound by the evidence given on oath by himself and Mr O’Sullivan. He should therefore have allowed the fees claimed by them without making any reduction. Where the findings were made otherwise than in accordance with the evidence the verdict must have been governed by prejudice.

20. Dr White went on to detail the extensive and skilled nature of the work carried out by Mr O’Sullivan in preparing and running the case in the High Court. The fee allowed by the Taxing Master, and confirmed by the High Court, in no way reflected the level of commitment and expertise involved in the case, he said. Nor did it reflect the enormous importance of the case and the intensely difficult position of Mr O’Sullivan in “suing his own Society” .

21. With regard to his own brief fee for the High Court action, Dr. White objected to a comparison made by the learned High Court judge with the fee that “solicitous parents” would have been willing to pay for counsel in such a case. In his written submissions he states (which is obvious) that he had not been instructed by “solicitous parents” and goes on to say:

22. Senior counsel for the plaintiffs also rejected all comparisons with the fees charged by counsel for the Law Society, Ms Finlay and Mr Fitzsimons, which he described as “astonishingly smaller” . In his written submissions he provided a lengthy analysis of the fees marked by these counsel. This submission was, however, unnecessary, since the learned High Court judge had, in my view correctly, clearly rejected any comparison with the brief fees marked by counsel for the defendant. The defendant had not appealed against this finding, which accordingly must stand.

23. In both his written submissions and his oral submissions to this Court senior counsel for the plaintiffs laid considerable emphasis on the statement contained in the judgment of the High Court that he (Dr White) was a member of the academic staff of Queen’s University Belfast. He argued that this created a wrong impression of his role vis-à-vis the plaintiffs. In relation to this matter Dr White in his written submissions argued as follows:

24. In his oral submissions to this Court Dr White followed the same lines. He stated to the Court that at no time had be been a member of the academic staff of Queen’s University Belfast. He explained that during the relevant period he had, for reasons which he did not explain, been resident in Belfast, and had given a number of lectures as a visiting lecturer to law students in Queen’s.

25. In regard to senior counsel’s refresher fees in the High Court, Dr White stressed the number of new matters which arose and the new documents which were produced, during the course of the trial. All of this necessitated a great deal of extra work by both solicitor and counsel on each day of the trial.

26. With regard to the brief fee in the Supreme Court Dr White again submitted that the fee originally marked had not been properly challenged in the hearings before the Taxing Master. Full preparation for the appeal was required to be carried out. The plaintiffs could not know that the Law Society would amend the regulations prior to the hearing of the appeal.

27. Senior Counsel for the defendants, Mr Connolly, accepted the findings of the High Court in regard to the relevant fees. He submitted that the Taxing Master had given careful consideration to the submissions and the evidence before him, as could be seen from his detailed determinations. It was clear that he was acting within his jurisdiction. Mr Connolly submitted that Dr White’s arguments in regard to the oral evidence before the Taxing Master were wrongly based. The hearing before the Taxing Master was not comparable with a trial before a judge or jury. The Taxing Master had a wide discretion, based on his expertise and experience as a solicitor, to have regard both to the oral evidence and to the documentary evidence before him, as well as to the expert submissions of the legal costs accountants. He also had a discretion to rely on his own experience of the level of costs and fees in comparable cases.

28. Traditionally the High Court was slow to interfere with the Taxing Master’s determination in regard to solicitor’s instructions fees, since judges felt that they lacked the Taxing Master’s expertise in such matters.

29. Senior Counsel for the defendants went on to refer to the criteria applicable for the determination of appropriate costs in any action before the Taxing Master which were set out in Order 99, Rule 37(22)(ii) of the Rules of the Superior Courts 1986. He pointed out that the sum total of these criteria had been succinctly summarised by Barron J. in Best v Wellcome [1996] 3 I.R.378 at page 387 where the learned judge stated:-

30. Mr. Connolly submitted that both the Taxing Master and the learned High Court judge had borne these criteria in mind and correctly employed them in the instant case.

31. Mr Connolly also submitted that the jurisdiction of the High Court ( and in turn this Court) to interfere with allowances made by the Taxing Master had been considerably restricted since the introduction of Section 27 of the Courts and Courts Officers Act 1995. He referred to a number of cases where reference had been made to that section.

32. Mr Connolly went on to open a number of extracts from the transcripts of both hearings before the Taxing Master, which, he argued, supported the Taxing Master in the determinations which he had made.

33. The modern statute law governing the matters at issue in this appeal is set out in Part VI of the Courts and Court Officers Act 1995. Section 27 sub-sections (1) and (2), as relevant to the powers and duties of the Taxing Master of the High Court, provide as follows:

34. The criteria applicable to the determination of appropriate costs in any action before the Taxing Master are set out in Order 99 Rule 37(22)(ii) of the Rules of the Superior Courts 1986. This rule deals specifically with the question of instructions fee as follows:

35. These criteria, as pointed out by Mr Connolly, have been summarised by Mr Justice Barron in Best v Wellcome [1996] 3 I.R.378 at 387 as follows:

36. This summary has been accepted and approved in later cases. The Taxing Master referred to these three criteria in his taxation and review in the present case. In his judgment (at page 6) Geoghegan J. in the High Court stated:

37. The learned judge then lists the three criteria.

38. Kelly J. agreed with this statement in Tobin and Twomey Services Limited v Kerry Foods Limited [1999] 1 ILRM 428, as also did Laffoy J. in Minister for Finance v Goodman (unreported 8th October 1999) .

39. In all these dicta emphasis is placed on the necessity for the Court to find that the decision of the Taxing Master is not only in error but also unjust.

40. If the plaintiffs are to succeed in this appeal, they must establish that the trial judge in the Court below erred in holding that the decisions of the Taxing Master on the solicitor’s instruction fee in the High Court, or senior counsel’s refresher fees in the High Court, and/or senior counsel’s brief fee in the Supreme Court were not unjust; alternatively they must show that the learned trial judge erred in the increase to £21,000 which he made in senior counsel’s brief fee in the High Court action.

41. The High Court judge’s decisions in regard to senior counsel’s brief fee and his solicitor’ instruction fee in the High Court are inter-related. The learned judge rightly accepted the crucial importance of the case to the plaintiffs and indeed to future law graduates of Queen’s University Belfast generally. He considered that the Taxing Master had not given sufficient weight to this factor, and in this I would agree with him.

42. He also considered, as had the Taxing Master, that the case was “barrister-led”. He suggested that the case was “devised, prepared, managed and ultimately fought by Dr. White” . Dr White in his submissions to this Court argued that this was not a correct picture. However, the trial judge’s finding is clearly supported by the evidence given by Dr White himself before the Taxing Master. A reading of the transcript of the hearing shows clearly the immense amount of work done by Dr White, who claims to have devoted himself exclusively to the preparation of this case for a period of three months.

43. Geoghegan J. gave some weight to the fact that, as he believed, Dr White was a member of the academic staff of Queen’s University. Dr White informs this Court that he was never a member of the academic staff of Queen’s University Belfast and the Court of course accepts that this is so. Nevertheless he was at the material time living on a continuous basis in Belfast and he appears to have had a relatively close connection with the university. He gave occasional lectures in the law school. As a distinguished legal academic of the National University of Ireland he was on his own evidence known to the members of the Faculty of the Queen’s Law School. He was at least aware of the initiation of the proceedings. The only plaintiff to give evidence in the trial before Laffoy J., Corann King, stated that it was Dr White who initiated the proceedings and described him as being involved in drafting a petition which was then circulated to the students and signed by them. Dr. White in this Court asserted that she was mistaken in her evidence. Nevertheless Dr White was closely and personally involved in the preparation of the case from the beginning and it was he who had personal contact and an unspecified number of consultations with the plaintiffs in Belfast. This is perfectly understandable, since his solicitor, Mr O’Sullivan, was running a busy practice in Cork, but it is nonetheless a factor to which weight must be given. Dr White denies that he provided his solicitor with witness statements and I accept this. However, he provided most detailed advices on proofs including outlines of the evidence that needed to be given by the various expert witnesses and, with the valuable assistance of his junior counsel, Mr Horgan, dealt with the necessary survey of the law both in the Republic of Ireland and Northern Ireland in the light of the courses followed by the plaintiffs in Queen’s University and of the examination criteria of the Law Society. There is no doubt that considerable credit is due to Dr White’s commitment to his clients who in the eventual outcome succeeded in the main aim of their proceedings.

44. It seems to me unfortunate that Dr White in his submissions to this Court characterises what was undoubtedly an inadvertent error on the part of the trial judge, in stating that Dr White was a member of the academic staff of Queen’s University, as being in some way a malevolent attack on his integrity and likely to damage his reputation. I find it difficult to follow the logic of Dr White’s position on this issue. It seems to me quite irrelevant to the questions before this Court; what is important is not the exact position which Dr White held in Belfast (which he has not revealed to the Court) but the fact that he was in Belfast and in contact with the plaintiffs and the Queen’s Law School.

45. In my view the learned trial judge had an abundance of evidence before him to enable him to reach the conclusion which he did in regard to senior counsel’s role in these proceedings and I agree with his conclusions. As far as the actual increased figure of £21,000 is concerned, it appears to me to be in every way reasonable, bearing in mind that costs were awarded for an eight day hearing only and solely in connection with the Article 6 issue.

46. The other side of this coin, however, is the role played by the plaintiffs solicitor. During the course of Mr O’Sullivan’s evidence before the Taxing Master the defendant’s accountant raised the question as to why the plaintiffs had instructed a Cork solicitor when they were living in Belfast. Mr O’Sullivan explained that he had offered to take on the case in conversation with a member of the academic staff of Queen’s whom he had met at a social function. Mr O’Sullivan was well accustomed to working with Dr White and Mr Horgan; he instructed them regularly, particularly in judicial review cases. However, the fact that he was in Cork and his thirty five clients were in Belfast meant that he had little actual contact with them. He attended one consultation in Belfast in December 1994; on his evidence to the Taxing Master he had never been in Northern Ireland before and suffered considerable fears as to the dangers he might, as a citizen of the Republic of Ireland, face once he crossed the Border. He subsequently met a number of the plaintiffs in Dublin when they attended a preliminary application to the High Court, but it is clear that he did not bear the normal burden of repeated consultations with plaintiffs which would have arisen in a case of this complex nature.

47. Bearing in mind the three criteria set out by Barron J. in Best v Wellcome , I accept, as did Geoghegan J., that Mr O’Sullivan did a large amount of work in this case, a major proportion of which was done at the direction and under the supervision of Dr White. In his evidence to the Taxing Master Mr O’Sullivan himself was somewhat vague as to the exact number of hours of work he had put in over the period and he does not appear to have kept accurate records which would have assisted the Taxing Master in reaching a conclusion as to the proper level of fee.

48. It does not appear that Mr O’Sullivan himself had any special expertise in the areas of law which were dealt with in the proceedings and while he undoubtedly bore considerable responsibility in the case, the lion’s share of the responsibility in the preparation, management and running of the case was, on the evidence, borne by Dr White.

49. At page 6 of his judgment Geoghegan J. refers to a passage from the Taxing Master’s review of the taxation which he quotes as follows:-

50. The learned High Court judge approves this passage and concludes at page 8 of his judgment that there was nothing in any of the evidence to suggest that an instruction fee of £76,000 was unfair or unreasonable and he affirmed the determination of the Taxing Master. In my view he was correct in that conclusion.

51. In dealing with the level of refreshers allowed by the Taxing Master, senior counsel for the plaintiffs asserted that each of the two senior counsel for the defendants had marked refreshers of £2,000 per day. He submitted that he should therefore have been allowed a refresher equal to the sum of these - in other words £4,000 per day.

52. In considering this matter the trial judge asked in Court whether there was precedent for any refresher in High Court litigation being allowed on taxation at a higher figure than the £3,150 determined by the Taxing Master. He was not presented with any such precedent. He went on to state:

53. In my opinion Geoghegan J. gave proper weight to the factors involved in determining the level of refreshers, and I see no reason to disturb his conclusion.

54. In dealing with the level of senior counsel’s brief fee in the Supreme Court Geoghegan J. pointed out that the substantive issues in the case were not really addressed in the Supreme Court except insofar as they related to the procedural matter of the form of relief which should be granted in the order and the question of costs. He concluded that the brief fee in the Supreme Court was therefore not related to the brief fee on the hearing of the action. He could find no error in principle or otherwise and no element of injustice in the fee of £10,000 allowed by the Taxing Master. I agree with his conclusions.

55. In the light of the conclusions set out above I would therefore dismiss the plaintiffs appeal.

56. Two matters, however, remain to be mentioned. The first is that in both his written and his oral submissions to this Court senior counsel for the plaintiffs raised the question of the solicitor’s instruction fee in the Supreme Court as determined by the Taxing Master. He argued that this fee was so low as to be unjust. It is difficult to understand how this matter arose before the Court in any shape or form. The solicitor’s instruction fee in the Supreme Court was not dealt with in any way by the High Court in its review of the taxation. It is mentioned neither in the High Court Order of the 3rd December 1999 nor in the Notice of Appeal. Clearly it forms no part of the appeal that is before this Court and the fee which was fixed by the Taxing Master must stand.

57. The second matter gives rise to more difficulty. The written submissions to this Court made on behalf of the plaintiffs contain a number of allegations against the trial judge. Firstly it is stated that he unjustly accused senior counsel for the plaintiffs of professional misconduct. This allegation is completely unfounded. The learned trial judge specifically stated at page 10 of his judgment “there has been no suggestion here of unprofessional conduct” .

58. More seriously, it is alleged that the learned judge was “compromised” in trying the case because one of the senior counsel acting on behalf of the defendant was his wife. Dr White embarked upon again raising this allegation in oral argument. The Court was then informed by Mr Connolly, senior counsel for the defendant, that at the commencement of the trial Geoghegan J. had specifically asked whether, on account of Ms Finlay’s participation, any party objected to his trying the case. He was happy to transfer the matter to another judge. He was assured by all parties, including counsel for the plaintiffs, that no such objection arose.

59. It appears that Dr White did not act for the plaintiffs in the Court below and was not himself a party to this exchange of views. However, it is difficult to believe that he was not made aware of it; for example, his present junior counsel, Ms Seligman, also acted as junior counsel for the plaintiffs in the Court below.

60. In the circumstances the making of such totally unfounded allegations against the learned trial judge must attract the strongest disapproval from this court. The situation was rendered even more distasteful by the fact that, while Dr White in this Court accepted Mr Connolly’s account of what had transpired in the Court below, he went on to argue that his clients were not bound by their then senior counsel’s failure to object to the trial judge. In the circumstances where the learned trial judge had expressly asked counsel if there was any objection to his trying the case, and where counsel for the plaintiff indicated that no such objection existed, it was extraordinary conduct on behalf of Dr. White to raise the matter on the appeal. There is no question of the learned trial judge being compromised.