Best v Wellcome
| Jurisdiction | Ireland |
| Judge | Mr. Justice Barron |
| Judgment Date | 19 May 1995 |
| Neutral Citation | 1995 WJSC-HC 1810 |
| Docket Number | 2641p/1978 |
| Court | High Court |
| Date | 19 May 1995 |
1995 WJSC-HC 1810
THE HIGH COURT
BETWEEN
AND
Citations:
MORIARTY V MCDONALD (UNIDENTIFIED)
AGA KHAN V FIRESTONE 1992 ILRM 31
O'SULLIVAN V HUGHES 1986 ILRM 555
CRILLY V FARRINGTON UNREP DENHAM 26.8.92 1993/11/3276
NORTHERN BANK FINANCE CORPORATION V CHARLTON 1979 IR 149
KELLY V BREEN 1978 ILRM 63
SMITH V TUNNEY 1993 1 IR 451
CROTTY V AN TAOISEACH 1987 IR 713, 1990 ILRM 617
RSC O.99 r12(2)(a)
RSC O.99 r10(2)
CASTLE BRAND LTD, IN RE 1990 ILRM 97
RSC O.99 r22(ii)
RSC O.99 r12(2)
RSC O.99 r12(2)(b)
O'DWYER V DENNEHY (UNIDENTIFIED)
Synopsis:
PRACTICE
Costs
Taxation - Review - Solicitor - Instructions - Counsel - Briefs - Negligence - Personal injuries - Plaintiff totally incapacitated with mental age of one year - Liability of defendant established on appeal - First bill of costs furnished and discharged - Claim to damages settled for 2.75 million on third day of resumed trial - Second bill of costs furnished in relation to damages issue - Dispute about items in second bill - Rules of the Superior Courts, 1986, order 99, rr. 12, 37(22)(ii) & appendix W, item 30 - (1978/2641 P - Barron J. - 19/5/95) - [1996] 3 IR 378 - [1996] 1 ILRM 34
|Best v. Wellcome Foundation Ltd.|
This matter comes before the Court by way of an appeal from the rulings of the Taxing Master made on the 8th December, 1993, in respect of objections brought in by the Defendant to his rulings dated the 30th July, 1993. There are four aspects of the taxation which are in contention: (1) Solicitor's instruction fee; (2) Counsel's brief fee; (3) professional fees relating to the provision of accommodation for the Plaintiff; and, (4) the fee for a Cost Accountant for the preparation of the Plaintiff's bill of costs.
In his ruling dated 30th July, 1993, the Taxing Master referred to the instruction fee as being a fee:-
"To cover taking instructions for the trial or hearing and not merely instructions for the preparation of a brief. … It was a fee to cover the overall care and attention which the case required, the difficulties in taking proofs of evidence and intended witnesses and generally organising the case. Ensuring the availability of witnesses and indeed the availability of Counsel. It had to cover living with the case. It covered a variety of consultations as well as the cost of assembling and preparing the brief itself."
Consideration of the work required by the Solicitor for the Plaintiff cannot be fully appreciated without reference to the entire proceedings. The Plaintiff was born on the 30th April, 1969. In the autumn of that year he received injections of a vaccine manufactured by the Defendant for the purpose of protection against diphtheria, tetanus and pertussis. Owing to a defect in the vaccine the mental development of the Plaintiff was so stunted that he now has a mental age of approximately a one year old child. His physical development was not affected. The issues before the Court and the matters which had to be established by the Plaintiff to succeed in the action were, to show that the particular vaccine could cause brain damage and that because of excess toxicity of the particular batch of vaccine it probably caused the injury to the Plaintiff. The action was at hearing before the High Court for 35 days in April, May and June 1989. The Plaintiff's claim was dismissed. The matter was appealed. The appeal was at hearing for eight days in May 1992. The Supreme Court allowed the appeal on liability and sent the matter back to the High Court for the assessment of damages.
The assessment of damages which had been expected to last anything up to six weeks commenced on the 6th May, 1993. The matter was settled on the third day for the sum of £2.750 million and costs.
The Bill of Costs as drawn sought an instructions fee of £440,000. This fee related to all work done from the 3rd June, 1992. All work done up to that date had been dealt with on a previous Bill of Costs in respect of which the instructions fee had been drawn at £400,000 and was by agreement reduced to £275,000. Upon the taxation of this item, evidence was given by Mr. Fitzpatrick, a Cost Accountant called on behalf of the Defendants, that the proper instructions fee should have been £150,000. He raised two basic issues as well as submitting that the amount being claimed was excessive. He submitted that work had already been done upon the issue of damages prior to the 3rd June, 1992 and that allowance should be made for this. He also submitted that the Solicitor would have had a reservoir of knowledge by reason of the fact that he had acted in the main action and that this would have eased his task in relation to the assessment of damages. The Taxing Master did not accept either of these two latter submissions. He found that no serious consideration had been given to the question of damages prior to the matter being sent back for such assessment by the Supreme Court. He also was of the view that the reservoir of knowledge which the Plaintiff's Solicitor would have had was of only minute importance.
The Taxing Master regarded the proceedings as being unique and his report on this item began as follows:-
"This action is one of the most important ever in the history of the State to date."
He reduced the fee to a sum of £400,000. He did so on the following basis:-
"Due to the fact that the Plaintiff is a Ward of Court there is not and there cannot be any Solicitor and client fee chargeable by the Plaintiff's Solicitors in this matter and on taking into account the unique cause of action, the rarity of the case, the complexity of the subject matter, the novelty of the subject matter, the issues and proofs required for the assessment of damages, general damages and special damages, punitive, aggravated and exemplary damages, the projected length and duration of the trial, the award of damages in the sum of £2.75 million, I consider a fair and reasonable fee by way of instructions is £400,000 and I rule same accordingly."
The Taxing Master also took into account that the Defendants” in-house lawyers would have done some of the work and that accordingly the fee of £110,000 payable to the Defendants” Solicitors would have related to less work than that required for the Plaintiff's Solicitors.
On the hearing of objections to this ruling the Taxing Master made no further reduction in this item. This was perhaps not surprising since Mr. Fitzpatrick had increased his estimate of the appropriate fee from £150,000 to £200,000 and Mr. Lowe, who was also called to give evidence on behalf of the Defendants, was of the opinion that the appropriate fee should have been £220,000.
There is no doubt but that the facts giving rise to the original cause of action were unique and that the case was an extremely difficult one. I would agree and endorse everything which has been said about the case in this regard. When it came to the assessment of damages, the nature of the facts which had to be proved to establish liability was of limited relevance. The most important matter was to bring to the attention of the Court the truly appalling effects which the tort committed by the Defendant had caused to the Plaintiff. He was an adult with the intelligence of a one year old. He was incontinent and irrational in temperament which caused difficulties both for himself and for those who cared for him. He required constant supervision. He was likely to tear his clothing and to hurt himself.
The substance of the assessment of damages in a personal injuries action is the nature of the injury sustained by the Plaintiff. The more complicated the injuries and the greater the divergence of the views of the doctors in relation thereto the more difficult the case. In the present case, the Plaintiff had suffered severe brain injury and the substantial matters at issue were the financial consequences of this appalling tragedy. Persual of Counsel's advices of proof bear this out. The real difficulty in the case was the presentation of the consequences of the injuries and to show what those consequences meant in financial terms. The amount of the settlement is testimony to the expertise of the Plaintiff's legal advisers in the preparation and presentation of the case. The work involved was painstaking and massive. It was eased to some extent by the existence of organisations dealing with people with serious injuries who have knowledge of the needs of such persons.
The Solicitor for the Plaintiff who is Vice-Chairman of the Litigation Committee of the Law Society gave evidence and dealt with the several matters with which he had to deal. They were as follows:-
(3) Consideration had to be given to seeking an increase in the multiplier used in the actuarial calculations which required evidence from an actuary and an economist;
(4) As the Plaintiff would be a Ward of Court, returns of money invested had to be considered;
(8) The principles of Reddy -v- Bates had to be considered;
(9) It was necessary to argue that the cap on general damages should be removed;
(11) Loss of earnings of the Plaintiff's father.
It is, I think, significant that Mr. Cantillon placed little significance so far as the work involved was concerned upon the nature of the...
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