Boyne v Dublin Bus/Bus Atha Cliath and Another
| Jurisdiction | Ireland |
| Judge | Mr. Justice Gilligan |
| Judgment Date | 14 June 2006 |
| Neutral Citation | [2006] IEHC 209 |
| Date | 14 June 2006 |
| Court | High Court |
| Docket Number | [2000 No. |
BETWEEN
AND
[2006] IEHC 209
THE HIGH COURT
PRACTICE AND PROCEDURE
Costs
Taxation of costs - Appeal from Taxing Master - Party and party costs - Liability to pay - Letter of agreement or estimate in advance - Strict compliance with procedure - Whether failure to comply with procedure should be regarded - Whether lower liability achieved on another basis of costing - Whether error in award of Taxing Master -Whether award unjust - Counsel's fee -Refresher - Amount thereof - Attorney General (McGarry) v Sligo County Council [1991] 1 IR 99; A & L Goodbody Solicitors v Colthurst [2004] IEHC 13 (Unrep, Peart J,5/11/2003); Garbutt v Edwards [2006] 1 All ER 553 and Superquinn Ltd v Bray UDC (No2) [2001] 1 IR 459 followed - Solicitors(Amendment) Act, 1994 (No 27), s 68 -Courts and Court Officers Act, 1995 (No 31), s 27 - Award upheld except for accountant's fee (2000/12133P - Gilligan J - 14/6/2006)[2006] IEHC 209 Boyne v Dublin Bus
The defendants sought to review the decision of the Taxing Master pursuant to s. 27(3) of the Courts and Court Officers Act 1995 and Order 99, rule 38 of the Rules of the Superior Courts. The defendants made a preliminary objection that the plaintiff was not entitled to recover any costs from the defendants on a party and party taxation in circumstances where the plaintiff was not under a legal liability himself to discharge the corresponding part of his own bill of costs.
Held by Gilligan J. in dismissing the defendants' preliminary objection and dismissing the defendants' appeal that the Court's function was simply to review the decision of the Taxing Master and was not an appeal de novo. The Taxing Master did not err in the exercise of his discretion. There was not sufficient information available to come to a view on the expert report and this aspect of the appeal should be referred back to the Taxing Master.
Reporter: P.C.
COURTS & COURT OFFICERS ACT 1995 S27(3)
RSC O99 r38
MCENEANEY v MONAGHAN CO COUNCIL & COILLTE TEORANTA UNREP O'SULLIVAN 26.7.2001 2003/40/9627
MCGARRY, AG v SLIGO CO COUNCIL 1991 1 IR 99
SOLICITORS (AMDT) ACT 1994 S68
SOLICITORS (AMDT) ACT 1994 S68(1)(c)
SOLICITORS (AMDT) ACT 1994 S68(4)
SOLICITORS (AMDT) ACT 1994 S68(5)
A & L GOODBODY SOLICITORS v COLTHURST UNREP PEART 5.11.2003 2004 IEHC 13 2003/1/80
RSC O99 r37(22)(ii)
GARBUTT & ANOR v EDWARDS & ANOR 2006 1 AER 553
SOLICITORS ACT 1974 S31
SOLICITORS PRACTICE RULES RULE 15
KEARNS v MANRESA ESTATES LTD UNREP KENNY 25.7.1975
IRISH TRUIST BANK v CENTRAL BANK OF IRELAND 1976 ILRM 50
COURTS & COURT OFFICERS ACT 1995 S27
COURTS & COURT OFFICERS ACT 1995 S27(1)
COURTS & COURT OFFICERS ACT 1995 S27(2)
COURTS & COURT OFFICERS ACT 1995 S27(3)
BLOOMER & ORS v INCORPORATED LAW SOCIETY OF IRELAND (NO 2) 2000 1 IR 383
SUPERQUINN LTD v BRAY URBAN DISTRICT COUNCIL (UDC) & ORS 2001 1 IR 459
QUINN v SOUTH EASTERN HEALTH BOARD UNREP PEART 30.11.2005 2005 IEHC 399 2005/51/10765
MIN FOR FINANCE v GOODMAN (NO2) 1999 3 IR 333
CODE OF CONDUCT OF THE BAR OF IRELAND PARA 11
ORMOND (AN INFANT) v IRELAND & AG 1988 ILRM 490
JUDGMENT of Mr. Justice Gilligan delivered on 14th day of June, 2006 .
This matter comes before the court by way of a review of taxation pursuant to s. 27(3) of the Courts and Court Officers Act, 1995 ("The 1995 Act") and Order 99, rule 38 of the Rules of the Superior Courts. The defendants seek to review the decision of the Taxing Master as dated the 16th March, 2005. The specific items in dispute are later specified but consist of
(a) Senior Counsel's Brief Fee,
(b) Junior Counsel's Brief Fee,
(c) Refresher Fees for Counsel,
(d) The plaintiff's solicitors instruction fee,
(e) The fee as charged by Peelo and Partners, Chartered Accountants, in respect of an expert report.
The substantive proceedings arose from a road traffic accident which occurred on the 20th January, 1999, in circumstances where the plaintiff, having alighted from the defendant's bus, was knocked down by the bus in such a manner as to cause the plaintiff very significant personal injuries. The plaintiff had consumed alcohol immediately prior to the accident occurring and subsequent to boarding the defendants bus had no recollection of any of the following events. The second named defendant who was the driver of the bus was completely unaware of any accident.
Liability was contested in full by the defendants and contributory negligence was pleaded on the part of the plaintiff principally that he failed to have any adequate regard for his own safety and welfare and that he exposed himself to a risk of injury by reason of the excessive consumption of alcohol.
It was clear to the plaintiff's legal advisors at an early stage as pointed out to the plaintiff in a letter of the 12th August, 1999, that the case could well have obvious difficulties but nevertheless in the view of the plaintiff's solicitors it was a case which had to be taken.
The plaintiff's solicitors retained one Senior Counsel and Junior Counsel to act on the plaintiff's behalf.
It was at all times quite clear that the plaintiff, as a result of the significant injuries sustained, was pursuing a very substantial claim for loss of earnings both to the date of trial and into the future and in this regard a consulting actuary had been retained. The plaintiff's actuary was proposing to rely on a 3% rate of interest for the purpose of the calculation of the appropriate multiplier to be applied to any claim for future loss of earnings following upon the decision of in McEneaney v. Monaghan County Council (Unreported, High Court, O'Sullivan J. 26th July, 2001). It is of some significance in the particular circumstances of this case that it was only subsequent to the commencement of the actual hearing before the trial judge in December, 2001 that it was indicated on the defendant's behalf to counsel for the plaintiff that the defendants were not prepared to accept 3% as an appropriate rate of interest for the purpose of ascertaining the appropriate multiplier to be applied in respect of the claim for loss of earnings notwithstanding the decision of O'Sullivan J. on the 26th July, 2001, in McEneaney. Furthermore, the defendants retained a second senior counsel to assist senior and junior counsel, as already retained on the defendant's behalf in respect of the economic argument, and it was necessary for the plaintiff's solicitors to retain the services of Des Peelo, Chartered Accountant, and Moore McDowell, Economist, as expert witnesses to give evidence in relation to the economic argument on the plaintiff's behalf. The defendants retained the services of Colm McCarthy, Economist, as an expert witness to give evidence on their behalf.
The actual hearing lasted for six days and in a reserved judgment on the 11th April, 2002, the trial judge apportioned liability 75% against the defendants and 25% against the plaintiff. The learned trial judge dealt extensively in his judgment with the economic issue and came to the conclusion that the appropriate real rate of return should be 3%, thereby coming to the same conclusion as O'Sullivan J. in McEneaney.
The learned trial judge assessed damages in the sum of €541,278.60 and allowing for the apportionment of liability awarded the plaintiff the sum of €405,958.95.
Following legal submissions on the 25th April, 2002, the learned trial judge entered judgment in the plaintiff's favour in the sum of €405,291.54 together with the costs of the proceedings when taxed.
The judgment and order of the trial judge was not appealed.
The defendants submit that the plaintiff is not entitled to recover any costs from the defendants on a party and party taxation in circumstances where the plaintiff is not under a legal liability himself to discharge the corresponding part of his own bill of costs being the amount herein sought to be recovered on taxation. The defendants" contention is based on the decision of the Supreme Court in Attorney General (McGarry) v. Sligo County Council [1991] 1 I.R. 99 wherein Walsh J., at p. 119, in dealing with the issue of costs took the view that nothing could be recovered in party and party taxation unless three conditions were fulfilled, namely, (a) that the court has made an order for costs in favour of the party, (b) that the matters claimed had been properly incurred and (c) that the party in question is under a legal liability to pay them. Subsequent to this decision being handed down the Oireachtas enacted the Solicitors (Amendment) Act, 1994 and s. 68 thereof makes provision in relation to charges to clients by solicitors. As a result of non compliance by the plaintiff's solicitors with the requirements of s. 68 it is contended on the defendants" behalf that the plaintiff is not under any legal liability to pay his solicitor the relevant costs and accordingly nothing can be recovered on the plaintiff's behalf on this party and party taxation.
Section 68 of the Solicitors (Amendment) Act, 1994 states as follows:
68.ù(1) On the taking of instructions to provide legal services to a client, or as soon as is practicable thereafter, a solicitor shall provide the client with particulars in writing ofù
a ( a) the actual charges, or
b ( b) where the provision of particulars of the actual charges is not in the circumstances possible or practicable, an estimate (as near as may be) of the charges, or
c ( c) where the provision of particulars of the actual charges or an estimate of such charges is not in the circumstances possible or practicable, the basis on which the charges are to be made,
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