Brehony v Longford Westmeath Farmers Mart Ltd
|Mr. Justice Hanna
|30 March 2012
| IEHC 247
|[No. 7717 P/2004]
|30 March 2012
 IEHC 247
THE HIGH COURT
RSC O.99 r38(1)
COURTS & COURT OFFICERS ACT 1995 S27(2)
COURTS & COURT OFFICERS ACT 1995 S27(3)
RSC O.99 r12(1)
RSC O.99 r37(22)(I)
BLOOMER v INCORPORATED LAW SOCIETY OF IRELAND
MIN FOR FINANCE v GOODMAN (NO 2) 2003/37/8791
TWOBIN & TWOMEY SERVICES LTD v KERRY FOODS LTD
SMYTH v TUNNEY (NO 2)
FLYNN & HALPIN TAXATION OF COSTS 1999 479
SUPERQUINN LTD v BRAY URBAN DISTRICT COUNCIL (UDC) & ORS 1999/23/ 7593
BEST v WELLCOME FOUNDATION LTD & ORS
COMMISSIONERS OF IRISH LIGHTS v MAXWELL WELDON & DARLEY
MAHONY v KCR HEATING SUPPLIES
BOYNE v DUBLIN BUS & ANOR (NO 2)
FLYNN & HALPIN TAXATION OF COSTS 1999 522
PRACTICE & PROCEDURE
Review of taxation - Attendance fee - Whether error in principle in utilising instruction fee as "great equaliser" - Whether insufficient analysis and explanation of allowed fee - Whether fee disproportionate - Rules of the Superior Courts 1986 (SI 15/1986), O 99 - Courts and Courts Officers Act 1995 (No 31), s 27 - Review allowed, matter remitted (2004/7717P - Hanna J - 30/3/2012)  IEHC 247
Brehony v Longford Westmeath Farmers Mart Ltd
Facts: The plaintiff had been injured in 2001 in the course of his employment at a famer's mart in Co. Longford. A personal injuries claim was issued and settled on the third day it was listed for hearing in 2010. The case had been listed for hearing and not reached on two previous occasions. The terms of the settlement required costs to be agreed, or taxed in default of agreement being reached.
As agreement was not reached, the matter went before the Taxing Master in 2011 (the original Master having retired after initially taking receipt of the matter). The defendant contended that the Taxing Master's ruling was incorrect in regards of the costs for solicitors attending court on the two days the claim was listed but not reached.
Held by Hanna J, that the issue to be determined was whether the Taxing Master was incorrect in terms of the amount allowed leading to an unjust ruling as described by s 27 of the Courts and Court Officers Act 1995. The Taxing Master had a wide discretion to rule on the matter, but each bill would be taxed individually and on the facts of the case. The instructions fee could be used as a "great equaliser".
Considering the instant case, the evidence did not support the Taxing Master's ruling. The Court found that the evaluation of the amount allowed each was insufficient as a matter of principle, and that the actual sum allowed was disproportionately high in the context of the instruction fee.
The matter would therefore be remitted to the Taxing Master for re-consideration.
This is a review of taxation arising out of a claim for damages in respect of personal injuries suffered by the plaintiff on the 1st November, 2001 in the course of his employment with the defendant at the defendant's mart at Ballymahon, Co. Longford. The personal injuries proceedings were listed for hearing at the High Court on Thursday the 11th February, 2010. The case was not reached on that day and it was again listed for hearing on Friday 12th February, 2010 when again it was not reached. It was further listed for hearing on Tuesday the 16th February, 2010 when, at 4.30pm following discussions, the matter settled for €35,000 together with High Court costs and reserved costs to be taxed in default of agreement. This settlement was ruled on the 17th February, 2010.
A formal bill of costs with summons to tax was served on the defendant's solicitor and taxation came on for hearing and determination before the then Taxing Master (Charles A. Moran) on the 20th September, 2010.. He allowed the sum of €9,000 (being €3,000 per day) by way of attendance fees to the plaintiff's solicitor for each day the matter was listed for hearing. The defendant was dissatisfied with the allowances made by the Taxing Master and his solicitor filed and served objections to the allowances on the 27th September, 2010 which were returnable for mention before the Taxing Master on the 12th October, 2010. Submissions by both sides were exchanged (by the defendant on the 8th November, 2010 and the plaintiff on the 15th December, 2010).
Taxing Master Moran retired in December, 2010. The matter was listed before Taxing Master Flynn on the 25th January, 2011 and both parties were agreed on Taxing Master Flynn making a ruling and a determination on the objections as if the original taxation had been commenced before him.
On the 11th March, 2011, Taxing Master Flynn made his rulings and determinations on the objections. He affirmed the taxation of Item 188, in respect of the instructions fee. In his written ruling, he stated as follows at p. 5:-
"With regard to days in the list and not reached, where the solicitor attends for the full day [this] attracts an allowance of €3,000.00 or thereabouts depending on the circumstance. This allowance is adjusted depending on the location of the solicitor's office to the court and the length of time the solicitor actually spends in court. The plaintiff's solicitor's offices are in Longford and the case was heard in Dublin. Such an allowance of €3,000.00 was appropriate at time of taxation. In such circumstances, I see no reason to reduce the fee and correspondingly disallow the objection and affirm the taxation."
The defendant was dissatisfied with the rulings and determinations in relation to Item 188 and sought review by way of motion dated the 1st April, 2011, pursuant to O. 99 r. 38(1) of the Rules of the Superior Courts 1986 ("the Rules"). The motion was grounded on the affidavit of F. Gerard M. Gannon, solicitor for the defendant, sworn on the 12th April, 2011. The motion is confined to the claim by the plaintiff and allowance by the Taxing Master in relation to Item 188 in the Bill of Costs, the instructions fee.
The Courts and Court Officers Act,1995 ("the Act of 1995") confers upon the Taxing Master the general power to tax, assess and determine the value of work done or services rendered by a solicitor in a variety of circumstances.
Section 27(2) confers discretion upon the Taxing Master "to allow in whole or in part, any costs, charges, fees or expenses included in a Bill of Costs" in respect of a solicitor which "he considers in his or her discretion to be fair and reasonable in the circumstances of the case." The Taxing Master has the power in the exercise of that discretion to allow or disallow costs, charges, fees or expenses in whole or in part.
The powers of the High Court in a taxation appeal have been curtailed somewhat by s. 27(3) of the Act of 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."
O. 99 r. 12(1) of the Rules sets out the way in which the costs of a solicitor are to be computed:
"The scale of costs contained in Appendix W, Parts I, II, and V, together with the notes and general provisions contained therein shall apply to the taxation of all costs incurred in relation to contentious business."
Part I of Appendix W identifies 81 separate items which arise in relation to litigation. In respect of ten of those items, no fee is prescribed. The particular items are expressly left to the discretion of the Taxing Master. Of the remaining 71 items either particular fees are prescribed or in some cases fees within a given range are prescribed.
Order 99 r. 37(22)(i) provides:
"Where in Appendix W there is entered either a minimum and a maximum sum, or the word "discretionary", the amount of the costs to be allowed in respect of that item shall, subject to any order of the Court, be in the discretion of the Taxing Master within the limits of the sums so entered (if any)."
In the instant case an attendance fee of €20.49 (£16.12), which is the maximum allowance under Item 24 (for attending at sittings) in Appendix W, was allowed by the Taxing Master, in addition to which he provided a sum of €3,000 per day to the plaintiff's solicitor in respect of an attendance fee for the three days in question. The question before the Court is whether in allowing the extra sum of €9,000 the Taxing Master has erred as to the amount of the allowance or disallowance so that his decision is unjust in accordance with s. 27(3). The test as regards this is set out in caselaw and I have considered the authorities below.
InBloomer v. Incorporated Law Society of Ireland, Geoghegan J. applied the test set down in Minister for Finance v. Goodman (No. 2) and Tobin & Twomey Services Ltd. v. Kerry Foods Ltd. as follows at p.387:
"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...
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...reasonable or prudent to brief two counsel and that this involved excessive caution". In Brehony v. Longford Westmeath Farmers Mart Ltd.  IEHC 247, Hanna J., opening paragraph 59 of his judgment with the words "each bill, however, must fall to be taxed on a case-by-case basis", commen......