Bloomer v Incorporated Law Society of Ireland (No. 2)

• Jurisdiction: Ireland
• Judge: Mr. Justice Geoghegan
• Judgment Date: 03 December 1999
• Neutral Citation: [1999] IEHC 260
• Court: High Court
• Docket Number: [1994 No. 5680 P],No. 5680p/1994
• Date: 03 December 1999

[1999] IEHC 260

THE HIGH COURT

No. 5680p/1994

BLOOMER v. INCORPORATED LAW SOCIETY

BETWEEN

ALISON BLOOMER, UNA MICHELLE BRIEN, RICHARD BULLICK, VANESSA BYRNE, PAUL CAMPBELL, JILL CLULOW, BRIAN COLE, STEPHEN GERARD COY, LEWIS JOHN CHERRY, CLARE DOHERTY, FIONA DUMMIGAN, JONATHAN L. DUNLOP, KATHERINE B. FINNEGAN, PATRICIA GROGAN, RONAN HAUGHEY, JACQUELINE KEE, CORANN KING, MARIE-LOUISE LOWRY, MARK McELHINNEY, BRIAN McLOUGHLIN, KATHERINE McGILLIE, JOSEPH D. McVIEGH, FIONA McKIMM, JOHN MACKIN, HEATHER MATCHETT, PAMELA ANN MORGAN, LOUISE MULHOLLAND, BRONWYN A. PURVIS, MARK REEL, ADRIAN RUTH, IAN STANFIELD, DORIT STUMPER, DENISE TAYLOR, GRAINNE TURLEY AND KARYN A. WOODS

PLAINTIFFS

AND

THE INCORPORATED LAW SOCIETY OF IRELAND, IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS

Abstract:

Practice - Costs - Taxing master - Role of counsel - Counsel's brief fee - Refresher fees - Solicitor's instruction fee - Jurisdiction of court - Whether rulings of taxing master unjust - Whether rulings of taxing master should be disturbed - Courts and Court Officers Act, 1995 (No 31) section 27(3).

The plaintiffs had been successful in an action taken against the respondent in relation to entrance requirements for Blackhall Place. The plaintiffs were ultimately awarded their costs in the Supreme Court. Subsequently the fees submitted by the solicitors and counsel who acted on behalf of the plaintiffs were reduced by the taxing master. The plaintiffs appealed against this finding to the High Court. Geoghegan J held that the instruction fee of the solicitors as set by the taxing master was fair and would be affirmed as the sum of £76,000. In addition the sum allowed by the taxing master with regard to refresher fees was affirmed. The brief fee allowed to the senior counsel was however too low and would be increased from a sum of £12,600 to one of £21,000.

1 Judgment of Mr. Justice Geoghegan delivered the 3rd day of December, 1999.

2 This is an appeal from a taxation of costs in the above entitled action which was commenced in the High Court but which went ultimately on appeal to the Supreme Court. The items in dispute in the order in which I will be dealing with them are as follows:-

3 1. The Solicitor's instruction fee in the High Court.

4 2. Senior Counsel's brief fee on the appeal to the Supreme Court.

5 3. Senior Counsel's refresher in the High Court.

6 4. Senior Counsel's brief fee in the High Court.

7 The Plaintiffs were graduates of Queens University Belfast who had attained the degree of Bachelor of Laws (LL.B). They sought a declaration that they were entitled to the like recognition and the like exemption from the final examination, first part of the Law Society as is afforded to graduates of the National University of Ireland, the University of Dublin and the University of Limerick who hold a primary degree in law of one of those universities or who hold a primary degree partly in law and 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 Queens University Belfast and there was 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.Although a number of issues were raised at the hearing of the action which came before Laffoy J., 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 Queens 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 a costs order in favour of the Law Society. The Plaintiffs appealed her order to the Supreme Court and before the appeal came on, the Law Society agreed to amend the regulation and include the students from Queens University for the exemption. For all practical purposes therefore the real issue before the Supreme Court on appeal was the question of costs. Technically, however, the Plaintiffs were requesting the Supreme Court to make a declaration as to the invalidity of the regulation and the Plaintiffs were also pressing for an entitlement to damages for conspiracy. The Supreme Court was less than impressed by the claim for damages for 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.

8 All the costs went to taxation and were dealt with by Taxing Master Moran. The Plaintiffs had been represented by one Senior Counsel, Dr. White and by Junior Counsel, Mr. Horgan instructed by a Cork Solicitor, Mr. Denis O'Sullivan. It is not in contention that Junior Counsel should be entitled to two-thirds of the brief and refresher fees of Dr. White.

9 The brief fee marked and claimed by Dr. White for the High Court hearing was £47,500. The refresher marked for the High Court by Senior Counsel was £6,000 for each day. The Solicitor's instructions fee claimed in respect of the High Court was £210,000 and the brief fee claimed by Senior Counsel for the Supreme Court hearing was £25,000. Each of these claimed figures was substantially reduced by the Taxing Master. Dr. White himself gave evidence before the Taxing Master from which it emerged that the £47,500 was a kind of aggregate of a real brief fee claimed of £35,000 and a balance for numerous consultation fees which might not otherwise be recoverable. The Taxing Master regarded both figures as far too high and allowed a brief fee of £12,600. In respect of the refresher fees, the Taxing Master reduced the claim of £6,000 for each day to £2,625 a day. The Solicitor's instructions fee claimed at £210,000 was reduced by the Taxing Master to £76,000. Finally, the claimed brief fee for Senior Counsel on the appeal of £25,000 was reduced to £10,000 on taxation.

10 In accordance with normal practice the Taxing Master was called upon to review his taxation as a preliminary to any appeal to the High Court and on such review he upheld the original figures fixed by him with the exception of Senior Counsel's refresher in the High Court which he increased from £2,625 to £3,150.

11 The Plaintiffs now seek an upwards revision of all four of these sets of figures. The first question which I must consider is what legal principles do I apply to this appeal. It has been pointed out to me that the powers of the High Court in a taxation appeal have been curtailed somewhat by Section 27(3) of the Courts and Court Officers Act, 1995. That sub-section reads as follows:-

"The High Court may review a decision of a Taxing Master of the High Court... made in the exercise of his or her powers under this section, to allow or disallow any costs, charges, fees or expenses provided only that the High Court is satisfied that the Taxing Master... has erred as to the amount of the allowance or disallowance so that the decision of the Taxing Master... is unjust."

12 This sub-section came to be judicially considered by McCracken J. in Smyth -v- Tunney, [1999] 1 I.L.R.M. 211 at 213 in the following passage of his judgment:-

"The principle on which I must act, therefore, is not simply to decide whether the Taxing Master erred, but also, if I am to alter his decision, I must find that his taxation was unjust. I cannot approach this issue on the basis of trying to assess what costs I would have awarded had I been the Taxing Master."

13 Kelly J. agreed with that statement in Tobin & Twomey Services Limited -v- Kerry Foods Limited, [1999] 1 I.L.R.M. 428 as did Laffoy J. in The Minister for Finance -v- Goodman, (unreported judgment delivered 8th October, 1999). In considering whether the Taxing Master erred, I must see whether in arriving at his decision he had regard or excessive regard to some factor which he either should not have had any regard to or to which he should have had much less regard. I then have to consider whether there was some significant factor to which the Taxing Master ought to have had regard and to which he either had no regard at all or insufficient regard. Those are examples of errors of principle in the consideration of the facts but of course the Court must also consider whether the Taxing Master has fallen into error in either law or jurisdiction.

14 If this Court finds that the Taxing Master has erred in the sense described, this Court then has to address the second question which is whether the taxation was unjust. In relation to any...