Aspell v O'Brien

• Jurisdiction: Ireland
• Judgment Date: 26 November 1991
• Date: 26 November 1991
• Docket Number: [1988 No. 7270P]
• Court: High Court

Aspell v. O'Brien

Patrick Aspell

Plaintiff

and

Brendan O'Brien

Defendant

[1988 No. 7270P]

High Court

Practice - Costs - "Standby fees" paid to medical witnesses - Fees disallowed by Taxing Master - Whether such fees "reasonable charges and expenses" - Rules of the Superior Courts, 1986 (S.I. No. 15), O.99, r.37 (8).

Taxation of costs - Review - Principles to be applied - Disbursements in accordance with practice of reasonably prudent solicitor - Discretion of Taxing Master still subject to Rules - Existence of practice not altering effect of Rules - Rules of the Superior Courts, 1986 (S.I. No. 15), O.99, r.37 (18).

Order 99, r. 37 (8) of the Rules of the Superior Courts, 1986, provides inter alia:—

"Such reasonable charges and expenses as appear to have been properly incurred in procuring evidence, and the attendance of witnesses, are to be allowed."

Order 99, r.37 (18) provides:—

"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 allowed which appear to the Taxing Master to have been incurred or increased through over-caution, negligence or mistake, or by payment of special fees to or special charges or expenses to witnesses or other persons or by other unusual expenses."

The plaintiff's personal injuries action against the defendant was settled and an order made for taxation of his costs. The plaintiff's bill of costs ultimately submitted to the Taxing Master included"standby fees" for four medical witnesses whose attendance had been directed by counsel, only one of whom had actually been called (in respect of which he had received a separate and undisputed fee). The Taxing Master, in accordance with his usual practice, disallowed the fees on taxation. On review by the High Court of the Taxing Master's taxation, it was accepted that a practice had grown up by which such fees were commonly claimed and paid and that their payment had been recommended by the Incorporated Law Society. The plaintiff contended that the fees were "reasonable charges" and/or "reasonable expenses" within O. 99, r. 37 (8) and further contended that, as a reasonably careful and prudent solicitor would have paid the disputed fees, well-established principles of taxation required the Taxing Master to allow them, whether or not they came within the terms of O. 99, r. 37 (8).

Held by Costello J., affirming the decision of the Taxing Master and remitting the matter to him to complete the taxation in accordance with his decision, 1, that the standby fees in dispute were not "reasonable charges" or "reasonable expenses" within the meaning of O.99, r.37 (8), as the witnesses to whom they were paid, while they may have suffered some inconvenience, did not claim to have sustained any financial loss.

2. That the existence of a practice whereby solicitors made certain disbursements did not allow the Taxing Master to ignore the effect of O.99, r.37. In particular, disbursements...