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You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> DMPT -v- Taxing Master Moran & ors [2015] IESC 36 (29 April 2015)
URL: http://www.bailii.org/ie/cases/IESC/2015/S36.html
Cite as: [2015] IESC 36
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Judgment
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THE SUPREME COURT JUDICIAL REVIEW [Appeal No. 422/06] Murray J. Hardiman J. O’Donnell J. Laffoy J. Dunne J.
BETWEEN DMPT Applicant/Appellant AND TAXING MASTER CHARLES A. MORAN, MEMBERS FOR THE TIME BEING OF THE SUPERIOR RULES COMMITTEE, THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, IRELAND AND THE ATTORNEY GENERAL RESPONDENTS AND C.T. AND THE HUMAN RIGHTS COMMISSION NOTICE PARTIES Judgment of Ms. Justice Laffoy delivered on the 29th day of April, 2015
Factual and procedural background
(b) an order of the Supreme Court dated 15th October, 2002 awarding the first notice party her costs of the appeal against the appellant. 2. Subsequently, on 29th July, 2004, objections as to the level of costs allowed by the Taxing Master in relation to the taxation of the costs pursuant to the High Court order, but not the Supreme Court order, were filed on behalf of the appellant. The objections related to the costs allowed on three items in the High Court bill of costs, namely: the instructions fee; postage and telephone expenses and sundries; and the fee charged by a firm of chartered accountants. Although he initiated the procedure, the appellant did not pursue those objections by way of review before the Taxing Master pursuant to Order 99, rule 38 of the Rules of the Superior Courts 1986 (the 1986 Rules), as he might have. Instead, the appellant applied to the High Court ex parte on 1st November, 2004 for leave to apply by way of judicial review for certain reliefs. 3. By order of the High Court (McKechnie J.) made on 3rd November, 2004, the appellant was given leave to apply by way of judicial review for certain reliefs on the grounds set out in the order. Having regard to the issues which arise on the appeal, it is convenient to record at this juncture the contents of that order. The reliefs which the appellant was given leave to apply for were:
(a) a declaration that Order 99, rules 38(1), (2) and (3) of the 1986 Rules are ultra vires and void insofar as they require the appellant to make application to the Taxing Master by way of objection to the decision of the Taxing Master himself prior to making application to the High Court for review of the said decision, or, alternatively, (b) a declaration that the said provisions are incompatible with the European Convention on Human Rights (the Convention) pursuant to s. 5(1) of the European Convention on Human Rights Act 2003 (the Act of 2003), and/or (c) an order of prohibition restraining the Taxing Master from further embarking on an objections procedure in proceedings between the appellant and the first notice party, and/or (d) an order of certiorari setting aside such proceedings if any as have been conducted on foot of such an objections procedure; (2) an order by way of mandamus and/or a mandatory injunction requiring the Taxing Master to give reasons for his decision dated 8th July, 2004; (3) an order of mandamus or, alternatively, a mandatory injunction requiring the Taxing Master to make a written record of his decision dated 8th July, 2004, or, alternatively, an order pursuant to Order 84 of the 1986 Rules; and (4) subject to the reliefs as aforesaid, damages for breach of duty, including statutory and constitutional duty and/or damages for breach of the Convention pursuant to s. 3(2) of the Act of 2003.
(ii) that the said provisions are contrary to the appellant’s rights pursuant to the Constitution, in particular his right to fair procedures pursuant to Article 40.3 of the Constitution, in that they require the appellant to apply to the Taxing Master in the first instance by way of review of the decision of the Taxing Master, in breach of the requirements of natural and/or constitutional justice and, in particular, of the doctrine of nemo iudex in causa sua, or alternatively by reason of the fact that the said provisions require such an application to be made as a pre-requisite to application being made to the High Court by way of review of the Taxing Master’s decision on costs and are therefore an unjustified impediment to the appellant having access to the courts, contrary to Article 40.3 and/or Article 34 of the Constitution and that further, or alternatively, the said provisions are incompatible with the Convention pursuant to the Act of 2003 by reason of breaches of the right to a fair and public hearing by an independent and impartial tribunal pursuant to Article 6 of the Convention, and/or as an unjustified restriction on the right to an effective remedy contrary to Article 13 of the Convention; (iii) that, without prejudice to the foregoing, the appellant at the conclusion of the Taxing Master’s decision dated 8th July, 2004 requested reasons for the said decision and, notwithstanding the said request, the Taxing Master wrongfully failed to give such reasons contrary to Article 40.3 of the Constitution and/or Article 6 of the Convention; and (iv) that the appellant has and/or will suffer loss and damage as a result of being required to submit to the objections procedure as a preliminary requisite in order to have access to the High Court to obtain relief against the decision of the Taxing Master. 6. The dispute the subject of the proceedings was, in reality, a dispute between the appellant, on the one hand, and the Taxing Master and the other State parties who were named as respondents, all of whom were represented by the Chief State Solicitor, on the other hand. The first notice party did not participate in the proceedings, either at first instance or on the appeal. As I understand it, neither did the second notice party. 7. The application for judicial review was heard in the High Court by McGovern J., who delivered judgment on 31st July, 2006. In that judgment, which will be considered later, McGovern J. held that the reliefs sought by the appellant should be refused. Subsequently, that decision was given effect to in an order dated 3rd October, 2006, from which the appellant has appealed to this Court. 8. At the core of the appellant’s case is a fundamental challenge to the provisions of the 1986 Rules which govern the taxation of costs awarded to one party against another party, usually referred to as party and party costs, in civil proceedings in the High Court and the Supreme Court, which provisions are now to be found in Order 99 of the 1986 Rules. While it is necessary to outline the rule challenged (Order 99, rule 38(1), (2) and (3)) in the context of the legislative bases of Order 99 at this juncture, because of the fundamental importance of Order 99 in the administration of civil litigation, I consider it is also appropriate to address the statutory authority for Order 99 and how it has been implemented in depth.
Legislative bases of Order 99
10. In 1905, pursuant to the power contained in s. 61 of the Act of 1877, Rules of Court entitled “Rules of the Supreme Court (Ireland) 1905” (the 1905 Rules) were made. Even though made over a hundred years ago, in general, the provisions in the 1905 Rules are quite similar in many respects to the Rules of Court which now govern the High Court and the Supreme Court, namely, the 1986 Rules, as amended. In particular, as will be demonstrated later, there is amazing similarity between the provisions of the Order in the 1986 Rules which now governs costs, Order 99, which are in issue on this appeal, and the corresponding provisions of Order LXV of the 1905 Rules, which dealt with costs. 11. After 1922, the Act of 1924 cited in the Order of 3rd November, 2004, was enacted for the establishment of courts in this jurisdiction pursuant to the Constitution of Saorstát Éireann. In Part 1 of the Act of 1924 the High Court and the Supreme Court were established. Section 36 dealt with Rules of Court and empowered the Minister for Home Affairs to make rules to be styled “Rules of Court” for carrying Part I of the Act of 1924 into effect. Section 36 provided that, in particular, the rules might cover specified matters, the first matter referred to being “pleading, practice and procedure generally” in all civil cases. It was provided that such rules should be made only with the concurrence of a majority of a committee consisting of judges of the Superior Courts, members of the solicitors profession and members of the Bar. 12. Part VI of the Act of 1936, also cited in the Order of 3rd November, 2004, varied the statutory provisions then in force in relation to the making of rules of court. By 1936, the power to make rules had been transferred from the Minister for Home Affairs to the Minister for Justice. Section 68(1) of the Act of 1936 provided as follows:
13. Twenty four years after the enactment of the Constitution of Ireland, the courts provided for in Article 34.1 were established by the Courts (Establishment and Constitution) Act 1961 and by the Act of 1961, also cited in the Order of 3rd November, 2004. Section 14 of the Act of 1961 deals with the exercise of jurisdiction by the superior courts and subs. (2) provides as follows:
14. Sub-section (3) of s. 14, to which the appellant attached some significance, provides:
15. Section 48 of the Act of 1961, which was obviously intended to be a transitional provision, was concerned with the application of existing enactments, for example, the Courts of Justice Acts 1924 to 1961 and the then existing rules of court to the newly established courts. Sub-section (4) provided that rules of court made under the Courts of Justice Acts 1924 to 1961 and in force immediately before the operative date of the Act of 1961 should have effect subject to certain modifications. 16. In s. 55 of the Act of 1961 it is provided that the provisions set out in the Eighth Schedule are to apply in relation to offices and officers to be attached to the newly established courts. Among the officers attached to the Superior Courts by virtue of the Eighth Schedule are the Taxing Masters, who are ascribed the status of Principal Officer within the meaning of Part I of the Courts Officers Act 1926. Paragraph 19 of that Schedule provides that each of the Taxing Masters shall have and exercise the powers and authorities and perform and fulfil the duties and functions set out in the succeeding sub-paragraphs, sub-paragraph (a) stipulating that they shall have -
Rule challenged as being ultra vires in the context of Order 99 19. Part IV, which contains rule 14 to rule 37 inclusive, deals with taxation of costs. Rule 14 outlines the powers to tax which are conferred on the Taxing Master, which cover a range of circumstances, including the power to tax the costs of or arising out of any cause or matter in any of the Superior Courts. It is important to emphasise that, while rule 14(e) and rule 15 confer powers on the Taxing Master to tax costs on a solicitor and client basis in the circumstances outlined in each, what this appeal is concerned with is taxation on a party and party basis. The remainder of the rules in Part IV deal comprehensively with the manner in which the taxation process is to be implemented. For example, rule 37 sets out in thirty five sub-rules the general regulations which apply to all taxations. As submitted on behalf of the appellant, essentially the Taxing Master makes allowances or disallowances in respect of the different cost-items claimed in the bill of costs to have been incurred by the party whose costs are being taxed. The final result of the determination of the Taxing Master is a certificate of taxation setting out the costs as taxed. However, before that point is reached, there may be a review of the allowance or disallowance of a particular item or particular items on the basis of the objections of the dissatisfied party, as the wording of rule 38(1) quoted below demonstrates. It is to be noted that rule 33 specifically deals with taxation of solicitor and client costs. Rule 33(3) which is referred to in the judgment of McGovern J. is not relevant to the taxation of party and party costs to which this appeal relates. 20. Part V of Order 99 deals with review of taxation and contains rule 38 only. It is the validity of sub-rules (1), (2) and (3) only which the appellant challenges. The corresponding provision to rule 38 is to be found in rule 66 of Order LXV of the 1905 Rules. A comparison of rule 38(1), (2) and (3) and rule 66(1), (2), (3) of Order LXV discloses no material difference between the two rules. In short, nothing of materiality changed in the eighty one years between 1905 and 1986. 21. Rule 38(1) provides:
22. Rule 38(2) provides:
23. An important factor is that the last sentence in rule 38(2) has not been applicable since the enactment of s. 27(6) of the Courts and Court Officers Act 1995 (the Act of 1995) which, insofar as is relevant, provides:
24. A number of features of the review procedure provided for in rule 38(1) and (2) following on from rule 37 stand out and have been the subject of the discussion on the hearing of the appeal, namely:
(b) while it is expressly provided that the Taxing Master shall state in writing the grounds and reasons for his decision on the review, there is no similar express requirement in relation to the first stage of the process, when the Taxing Master makes the determination on the allowances and disallowances, except to the extent stipulated in rule 37(35), which mandates that he shall specify the grounds for making “a special allowance”, and, as happened in this case, in practice, no reasons are given at the conclusion of the initial stage; (c) unless objections are brought in and an application for reconsideration and review is made under rule 38(2), the allowances and disallowances take effect when the Taxing Master signs the certificate of taxation, although I consider that it is clearly implicit in rule 38 that the Taxing Master does not have authority to sign an effective certificate until the time period for initiating the bringing in of objections and seeking a review under rule 38(1) has expired, that is to say, fourteen days after the completion of the adjudication; and (d) since the enactment of s. 27(6), the dissatisfied party has to bear the costs of the review by the Taxing Master of his taxation, so that, in this case, if the appellant had pursued his application under rule 38(1), he would have had to bear the costs thereof, which have been assessed at €42,350, himself even if the outcome of the review had been favourable to him. 25. Rule 38(3) provides:
26. In rule 38(4), (5), (6) and (7), the procedure on review by the Court and remittal to the Taxing Master is dealt with in more detail than in rule 66 of Order LXV, which contains only one further sub-rule, rule 66(4), which is, in substance, in similar terms to rule 38(4). 27. Taking an overview of rules 37 and 38, in Gannon v. Flynn it was recognised in the judgment of Geoghegan J. in the Supreme Court (at p. 534) that potentially there are three stages in the taxation of costs:
(b) the review by the Taxing Master of the objections of a dissatisfied party in accordance with rule 38(1) and (2); and (c) in the event of a review by the High Court in accordance with rule 38(3), which review it was held is not part of the taxation process, the final procedure under rule 38(6) whereby, after the determination of the High Court, the matter has to be remitted to the Taxing Master to complete the taxation in accordance with the decision of the High Court and to issue a final certificate of taxation. Decision of High Court and grounds of appeal
29. In effect, in the notice of appeal the appellant seeks all of the reliefs for which he was given leave to apply in the order of 3rd November, 2004. Moreover, with one apparent exception, the grounds of appeal reflect the various grounds on which the appellant was given leave to seek judicial review in the order of 3rd November, 2004, in that the contention of the appellant is that the trial judge erred in failing to uphold each of those grounds. The apparent exception is an additional ground that the trial judge erred in concluding that the objections procedure in rule 38 did not constitute a form of appeal and that it was part of an ongoing process, whereas, it was contended, the true position is that:
(b) even if it is not an appeal and the objections procedure is part of an ongoing process, the procedure is nonetheless one for which there is no statutory authority and could not be prescribed by the Rules Committee as a mere matter of practice and procedure. Summary of the issues on the appeal
(i) lack statutory authorisation which would provide for such a procedure; (ii) are made in the absence of principles and policies set forth in the Courts Acts enabling such a procedure to be prescribed by rules; (iii) involve a breach of natural and constitutional justice, and/or (iv) involve a disproportionate and unnecessary interference with the right of access to the courts. (b) whether the impugned rules are incompatible with the Convention pursuant to s. 5(1) of the Act of 2003; and (c) whether the Taxing Master erred in failing to give any, or any sufficient, reasons for his decision dated 8th July, 2004, either in terms of the requirements of natural justice or the Convention. Lack of statutory authorisation for rule 38(1) and (2) review? 32. Having referred to s. 36 of the Act of the 1924, s. 68 of the Act of 1936 and s. 14(3) of the Act of 1961, it was submitted on behalf of the appellant that what is most striking is that there is no provision which explicitly authorises the Superior Court Rules Committee to confer a power on the Taxing Master in relation to the taxation of costs. In this connection, counsel adverted to the fact that in State (Gallagher Shatter & Co.) v. de Valera [1986] I.L.R.M. 3, delivering judgment in the Supreme Court, McCarthy J. rejected the contention of the respondent Taxing Master in that case that he was accorded jurisdiction by Order 99 and/or paragraph 19 of the Eighth Schedule of the Act of 1961 to conduct the taxation in issue there. McCarthy J. stated (at p. 7):
34. In my view, the observations of McCarthy J. quoted above have no relevance to the taxation process which occurred in this case and gave rise to the outcome which is the subject of these proceedings. Section 14(2) of the Act of 1961 expressly provides that the jurisdiction of the Superior Courts as regards pleading, practice and procedure generally, including liability to costs, is to be exercised in the manner provided by the rules of court, meaning rules made by the Rules Committee in accordance with its statutory authority. In inter partes litigation, liability to costs clearly involves the quantification of the costs for which a party against whom an order for costs is made is liable which, in accordance with the 1986 Rules, is determined under the taxation process now provided for in Order 99. 35. While the Rules Committee unquestionably has power to make rules governing the imposition of liability for and the quantification of costs in civil proceedings in the Superior Courts, two fundamental precepts identified by counsel for the appellant undoubtedly apply. First, in making rules the Rules Committee must exercise its powers within the limits conferred by s. 14(2) of the Act of 1961. Secondly, the Rules Committee must not exercise its powers in a manner which is inconsistent with constitutional principles. The application of the first precept will be considered by reference to the appellant’s contention that rules 38(1), (2) and (3) of Order 99 are made in the absence of principles and policies set forth in legislation enabling such a procedure to be prescribed. The second precept will be considered by reference to the appellant’s contention that the procedure provided for in those rules involves a breach of natural and constitutional justice and is an unnecessary interference with the right of access to the courts. Absence of legislative principles and policies enabling the procedure prescribed by rules 38(1), (2) and (3)? 37. Having said that, it is pertinent to record that the Rules Committee, as initially constituted by s. 67 of the Act of 1936, consists of the Chief Justice, the Presidents and members of the Superior Courts, representatives of the Bar and representatives of the solicitors’ profession. As such, it is the body which is best equipped to formulate fair, just and effective rules for the operation of the Superior Courts. “Self-review procedure” in breach of principles of natural and constitutional justice? 39. In his judgment, Kenny J., having stated that there had been some discussion as to whether the giving of the certificate was a determination of a semi-judicial type or whether it was an administrative act and having recorded his view that it did not matter, stated (at p. 333):
Kenny J. stated at the end of his judgment that he would allow the objection, reverse the decision of the Judicial Commissioner and refer the matter back to the lay commissioners to have Mr. Corrigan’s objection dealt with by two commissioners who did not sign the certificate. 40. In the High Court it had been submitted on behalf of the respondents, and it was reiterated on the appeal, that the procedure provided for in rule 38 was similar to other statutory procedures that may appear to be akin to appeals, but in fact are reviews or revisions forming an integral part of an overall decision-making procedure, citing the decision of this Court in Castleisland Cattle Breeding v. Minister for Social Welfare [2004] 4 IR 150. The issue which gave rise to that appeal was the status of a named individual for the purposes of the Social Welfare code - whether he was an employee of the appellant or an independent contractor. A deciding officer in the Department of Social Welfare had determined that he was an employee. That decision was appealed to an Appeals Officer under the provisions of the Social Welfare (Consolidation) Act 1993 (the Act of 1993) and, following an oral hearing, the decision was overturned. What happened next is outlined in the judgment of Geoghegan J. (with whom the other Judges of the Supreme Court concurred) as follows (at p. 153):
42. Neither of the decisions cited by the parties, in my view, deals with an adjudicative process which is in any way analogous to the process by which party and party costs in legal proceedings are taxed. The taxation process is sui generis. Its specialist nature is reflected in the personnel involved in it and in the manner in which they operate. The adjudicators, the Taxing Masters, specialise in the taxation of costs and are not involved in any other form of adjudication. As is pointed out by Flynn and Halpin (op. cit. at p. 664), when an order for costs is granted by a court, the solicitor acting for the successful litigant, in whose favour the order for costs is granted, would normally employ a firm of legal cost accountants to draw and prepare a detailed bill of costs. In fact, in this case, the appellant was represented before the Taxing Master by Declan O’Neill, principal of the firm of Cyril O’Neill, Legal Cost Accountants, and the first notice party was represented by Tony McMahon of Behan & Associates, Legal Cost Accountants. A cursory consideration of rules 14 to 37 of Order 99 certainly confirms how specialised the taxation of costs process is. Rule 29(5), for example, requires that bills of costs are to be prepared with seven separate columns, the fifth and the seventh being for certain specified deductions of the Taxing Master. Rule 29(9) sets out the requirements in relation to drafts or other documents “the preparation whereof is charged for by the folio” and, helpfully, rule 37(9) explains that a folio “comprises 72 words, every figure comprised in a column or authorised to be used being counted as one word”. While conscious that giving those examples verges on facetiousness, nonetheless, they do genuinely illustrate the nature of the work involved in taxation of costs. 43. The role of the Taxing Master under rule 38 must be considered against that background. His role is “a second stage of the taxation but part and parcel of the taxation”, as Geoghegan J. stated in Gannon v. Flynn at p. 534. It is a second stage which only comes into play if the dissatisfied party brings in objections. The objections must be in writing and the grounds and reasons for the objections must be set out. When that is done within the stipulated time limit, the dissatisfied party may apply to the Taxing Master to “review the taxation” in respect of the relevant items. The Taxing Master’s task is laid down very precisely in rule 38(2): it is to “reconsider and review his taxation upon such objections”. He has the discretion to receive “further evidence” in respect of the objections, the epithet “further” suggesting that what is involved is, as counsel for the respondents submitted, an amplification of the evidence which had hitherto been before him. When he has conducted his review, the Taxing Master must commit his decision and the grounds and reasons therefor to writing. 44. If a taxation goes to the second stage, the Taxing Master is reconsidering and reviewing his decision at the first stage with the benefit of the specific grounds and reasons advanced by the dissatisfied party for his objections and, perhaps, with the benefit of further evidence. One way of looking at that stage is that the dissatisfied party is getting, as the saying goes, a second bite of the cherry. On any view, the Taxing Master’s function is to reconsider and to review his earlier decision in the light of the additional arguments before him and, perhaps, additional evidence and, in the performance of that function, he acts independently of both parties involved in the taxation process. From an objective perspective, it is difficult to see why the Taxing Master would be naturally predisposed to support his original decision. The situation of the Taxing Master is not similar to either the example given by Kenny J., or the factual circumstances he was considering, in Corrigan v. Irish Land Commission. The example was that before 1877 -
45. One could speculate as to the policy underlying the review procedure provided for in rule 38. It may be that it is regarded as being less costly from the perspective of the litigants than a review directly to the High Court after the first stage, or, as counsel for the respondents submitted, it may be regarded as a filtration system, which avoids unnecessary use of the High Court. Whatever the policy, it is a review process which has been in place for over a century, which, as was disclosed in Flynn and Halpin (op. cit. at page 668), was only challenged once up to 1999 as lacking basic fair procedures, which challenge was in proceedings which were disposed of in the High Court by Keane J. on 24th March, 1995 without the challenge being addressed. While counsel for the appellant was correct in stating that, even if the review procedure has been hallowed by tradition, that does not necessarily mean it is above reproach, nonetheless, the fact that it seems to have been operated to the satisfaction of litigants for over a century does suggest that it had not been perceived as giving rise to objective bias. Of course, if the outcome of the bringing in of objections and the review procedure before the Taxing Master does not satisfy the dissatisfied party, he has his right to seek a review by the High Court in accordance with Order 38(3). 46. For the reasons outlined above, I have come to the conclusion that the review procedure conducted by the Taxing Master of his decision does not involve a breach of natural and constitutional justice on the basis argued on behalf of the appellant, or a disproportionate and unnecessary interference with the right of access to the courts. Incompatibility with the Convention? 48. For completeness, I should record that, having also considered another decision of the European Court of Human Rights referred to by counsel for the appellant, namely, Werner v. Poland (2003) 36 EHRR 28, in which judgment was delivered on 15th November, 2001, I am satisfied that nothing in it points to the review procedure before the Taxing Master provided for in rule 38 being in violation of Article 6 of the Convention. It follows that the appellant has not made a case that the impugned rules are incompatible with the Convention pursuant to s. 5(1) of the Act of 2003 by reason of the appellant being required to make application to the Taxing Master by way of objection to the decision of the Taxing Master prior to making an application for review to the High Court. Failure by Taxing Master to give reasons an infringement of the appellant’s constitutional or Convention rights? 50. In Mallak v. Minister for Justice, having considered a number of authorities, starting with The State (Lynch) v. Cooney [1982] I.R. 337, Fennelly J. stated (at para. 65):
53. The Court was referred by counsel for the respondents to one authority in which the question whether, as a matter of natural justice or fairness of procedures, the Taxing Master should give reasons if requested to do so at the end of the first stage of the taxation process was considered - the decision of McCracken J. in McEniry v. Flynn (the High Court, Unreported, 6th May, 1998). The facts in those judicial review proceedings were extremely unusual. The applicant, Mr. McEniry, a solicitor, was seeking a order of certiorari quashing a decision of the respondent, the Taxing Master, made in July 1996. It is clear from the judgment that the capacity in which Mr. McEniry attended the taxation was as solicitor on behalf of the party against whom an order for costs had been made in favour of another firm of solicitors, which were to be taxed on a solicitor and own client basis, in the extremely unusual circumstance that Mr. McEniry was liable for the costs when so taxed. In any event, at the end of the first stage in July 1996, when the Taxing Master announced his decision, Mr. McEniry questioned the basis on which the Taxing Master arrived at his decision and he also sought reasons for the ruling. The Taxing Master refused to give reasons and a certificate of taxation, which was the subject of the application for an order of certiorari, issued in the following December. McCracken J. held that, as Mr. McEniry had appeared before the Taxing Master as a solicitor for one of the parties to the taxation, and not in his own right, it was not open to him to set in train the procedures for a review of rule 38. Similarly, he held that Mr. McEniry did not have locus standi to bring the judicial review proceedings. He did, however, make some observations which were clearly obiter. He observed that there was no provision in the rules for the Taxing Master to give reasons for any decision he makes, except where there is a review of taxation under rule 38, stating that rule 38 makes it quite clear that the Taxing Master is only required to give reasons after a review of taxation, not after his initial decision. Therefore, he concluded that the Taxing Master had “acted in accordance with the Rules in conducting this taxation”. 54. Addressing the question whether, as a matter of natural justice or fairness of procedures, the Taxing Master should have given reasons, he acknowledged that there are circumstances in which justice may require the furnishing of reasons, citing Anheuser Busch Inc. v. Comptroller of Patents, Designs and Trademarks [1987] I.R. 329. McCracken J. then continued:
56. In assessing whether fairness could be attained in the overall taxation of the costs of the first notice party against the appellant without reasons accompanying the decision of 8th July, 2004, it is useful to consider one of the items against which the appellant brought in an objection, the instruction fee. The evidence established that the amount claimed by the first notice party was €450,000, the amount proposed by the appellant was €150,000 and the instructions fee allowed was €306,000. Obviously, the appellant could object to the amount allowed on the basis that it was too high, if that was his opinion or he was so advised. However, on bringing in an objection under rule 38(1), the dissatisfied party is required to set out the grounds and reasons for his objection. It is difficult to see how the appellant could effectively meet that requirement, even with the specialist assistance of Mr. O’Neill who had attended the taxation, without knowing the basis on which the Taxing Master arrived at the figure which was roughly halfway between the amount claimed and the amount offered. The fact that an objection was lodged on behalf of the appellant to meet the time limitation, does not mean that the objection would have effectively met the requirements of Order 38, rule 1, if these proceedings had not intervened and the reconsideration and review by the Taxing Master had taken place. In short, in order to decide whether to bring in an objection against the allowance of €306,000 on the instruction fee claim and to effectively prosecute the objection, if he decided to pursue that course, the appellant needed to understand the basis on which the Taxing Master reached that decision. The failure of the Taxing Master to give reasons when requested to do so on behalf of the appellant, in my view, rendered the continuation of the taxation process inherently unfair and unjust. 57. The fact that the second stage of the process would be a reconsideration by the Taxing Master, possibly with additional evidence, and the outcome would be a review of his decision, and that, if the appellant was dissatisfied with the outcome of the review, he could appeal to the High Court with the benefit of the Taxing Master’s reasons for that outcome, does not cure the inherent unfairness and injustice of the failure of the Taxing Master to give reasons at the end of the initial stage. The decision any dissatisfied party has to make at the end of the initial stage of the taxation process has serious implications for that party. First, if the review process is not invoked, the determination is a binding judgment requiring a party such as the appellant, for example, to pay €306,000, being in excess of €150,000 more than he submitted was appropriate, without knowing why that decision was reached. Secondly, in deciding whether to bring in objections and seek a review, any dissatisfied party to the taxation process is going to have to factor in against the likely outcome of the review the costs involved in the review, which must be borne by that party under s. 27(6) of the Act of 1995, as well as other possible adverse consequences, such as inconvenience and delay. Once again, taking the example of the instruction fee in this case, it is difficult to see how the appellant, even with specialist assistance from Mr. O’Neill, could assess whether a review of the decision on the instruction fee would justify expenditure of €42,350 on the second stage, in the absence of an understanding of the basis on which the Taxing Master arrived at the allowance of €306,000 for the instruction fee. Thirdly, making further submissions at the review stage, in the vacuum created by the absence of reasons, can only be speculative. It will not be easy, or in most cases possible, to focus any submissions, or make fresh arguments, if the basis of the adverse decision sought to be challenged or the favourable decision sought to be supported, is not known. Such submissions must often only be repetition of what was already submitted, in which case the result cannot be different. If reasons can be given at the end of the review stage, after expenditure of in excess of €40,000 may have been incurred, perhaps by both parties, it is difficult to understand why they could not be given earlier. 58. In summary, whether the decision of the Taxing Master is to make an allowance which the party bearing liability for the costs thinks is too high or a disallowance which the party claiming the costs thinks is excessive, if the dissatisfied party is not in a position, to use the term used by Fennelly J. in the Mallak judgment, to “understand” why the Taxing Master came up with that result because he will not give reasons, the dissatisfied party is put in an impossible situation. Without reasons for, and thus understanding of, the decision of the Taxing Master, the dissatisfied party will have to assess whether to -
(b) accept that decision as the final determinative decision. Order | ||||||||||||||||||||||||||||||||||||