Aspell v O'Brien

• Jurisdiction: Ireland
• Judge: O'FLAHERTY J.
• Judgment Date: 14 May 1993
• Neutral Citation: 1993 WJSC-SC 1503
• Court: Supreme Court
• Docket Number: [1988 No. 7270P]
• Date: 14 May 1993

ASPELL v. O'BRIEN

PATRICK ASPELL

Plaintiff/

Appellant

.v.

BRENDAN O'BRIEN

Defendant/

Respondent

1993 WJSC-SC 1503

Finlay C.J.

O'Flaherty J.

Denham J.

250/92

THE SUPREME COURT

Synopsis:

PRACTICE

Costs

Taxation - Review - Party and party - Action - Trial - Compromise - Prospective witness - Medical practitioner - Attendance - Standby fee - Compromise effected on second day of trial - Wit ness not called - Fee allowed - Rules of the Superior Courts, 1986, order 99, r. 37(8) (18) - (250/92 - Supreme Court - 14/5/93) - [1993] 3 I.R. 516 - [1993] ILRM 590

|Aspell v. O'Brien|

Citations:

ASPELL V O'BRIEN 1991 2 IR 416, 1992 ILRM 278

RSC O.99 r37(8)

KELLY V BREEN 1978 ILRM 63

GALLAGHER, SHATTER & CO , STATE V DE VALERA 1991 2 IR 198

RSC O.99 r37(18)

RSC O.99 r37

1 JUDGMENT of O'FLAHERTY J.delivered on the 14th day of May, 1993. [NEMDISS]

2 This is an appeal brought by the plaintiff from the judgment and order of the High Court (Costello J.) of the 26th November, 1991 whereby he declined to review the taxation of certain items of the plaintiff's costs in regard to "standby fees" for four doctors retained to give evidence on behalf of the plaintiff. In the course of his judgment (now reported in [1991] 2 I.R. 416) the learned High Court judge sets forth that counsel had directedthat these doctors should attend the hearing. Three of them had not been called as witnesses when the case settled but charged stand by fees for the first day of the trial, the 30th May, 1990, fees which the plaintiff's solicitor discharged. The fourth doctor was paid a standby fee for the 30th May and also a separate fee for attending on the 31st May, which was the day on which the case was settled.

3 The Taxing Master had disallowed these standby fees on the basis that the very essence and nature of such a charge is merely to have the potential witnesses available and that such fees had always been disallowed by Taxing Masters in the past. Nonetheless, as the judge pointed out, a practice had grown up whereby standby fees had been claimed and had been paid by solicitors and that the Law Society had recommended that such fees be paid. Further, the solicitors acting fordefendants" insurance companies had been agreeable to pay these fees in the past.

The Rules of the Superior Courts

4 Order 99 of the Rules of the Superior Courts, 1986 deals with costs. Rule 37 (8) provides

5 Such reasonable charges and expenses as appear to have been properly incurred in procuring evidence, and the attendance of witnesses, are to be allowed. .... The reasonable expenses and allowances of witnesses to attend a consultation or conference properly held prior to the trial shall be chargeable on taxation as between party andparty.

6 Paragraph 18 provides:

7 On every taxation the Taxing Master shall allow all such costs, charges and expenses as shall appear to him to have been necessary or proper for the attainment of justice or for enforcing or defending the rights of any party, but, save as against the party who incurred the same, no costs shall be allowedwhich appear to the Taxing Master to have been incurred or increased through over-caution, negligence or mistake, or by payment of special fees to counsel or special charges or expenses to witnesses or other persons or by other unusual expenses.

8 The learned High Court judge recounts that the listing system for personal injury cases in the High Court is not very satisfactory. Although the day on which a case is listed is known in advance so that reasonable notice can be given to potential witnesses of the day on which they may be required to attend, it cannot be guaranteed that the case will be heard on that day, and, of course, the time at which individual witnesses will be required is usually uncertain. This may cause inconvenience to professional witnesses but the judge did not think it reasonable for professional witnesses, be they doctors, architects, accountants, social workers or actuaries, to charge standby...