Buckley v O'Neill

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Twomey
• Judgment Date: 20 April 2016
• Neutral Citation: [2016] IEHC 201
• Docket Number: [2015 No. 441 JR]
• Date: 20 April 2016

[2016] IEHC 201

THE HIGH COURT

JUDICIAL REVIEW

Twomey J.

[2015 No. 441 JR]

BETWEEN:

JOHN J. BUCKLEY

APPLICANT

-AND-

DECLAN O'NEILL (TAXING MASTER)

RESPONDENT

-AND-

DENIS DOYLE

NOTICE PARTY

Revenue – Professional Ethics & Regulation – Over-charge by solicitor – Taxation of costs – S. 2 of the Attorneys and Solicitors (Ireland) Act, 1849 – Ruling by Taxing Master – Judicial Review – Certiorari – Adequacy of remedies

Facts: Following the institution of plenary proceedings by the notice party for seeking an account of monies from the applicant/former solicitor and the order of the High Court referring to the relevant bills of costs to the Taxing Master for taxation, the applicant had now initiated present judicial review proceedings against the ruling of the Taxing Master seeking an order of certiorari for quashing the decision of the Taxing Master for taxing relevant bills of costs. The applicant claimed that since his application to re-enter the original matter from where an order for taxation for costs emanated had been refused by the President of the High Court, he was left with no alternative, but to pursue the present judicial review proceedings.

Mr. Justice Twomey refused to grant the desired reliefs to the applicant and thus, dismissed the present application. The Court held that in an application for judicial review, the applicant had to meet a high threshold for establishing that the judicial review was the most suitable remedy. The Court observed that since the present application emanated from an order of the High Court, which was ancillary to the plenary proceedings instituted by the notice party, it was appropriate for the applicant to go back to the High Court by way of re-entering the matter. The Court taking note of the decision of the President of the High Court for refusing to re-enter the matter on the basis of availability of judicial review remedy/appellate procedures, held that the said order of the President of the Court could not be taken to recommend that the judicial review was the suitable remedy. The Court opined that it was not open for the applicant to explore an alternative way for circumventing the decision of one Court of equal jurisdiction by instituting proceedings in similar jurisdiction. The Court held that the applicant had the option of either appealing the decision of the President of the High Court to the Court of Appeal or challenging the decision of the Taxing Master under o.99, r. 38 of the Rules of the Superior Courts, the latter of which had already been done by the applicant and pending determination. The Court opined that even after exploring the said option, the applicant retained the right to apply to the High Court for the review of the taxation.

JUDGMENT of Mr. Justice Twomey delivered on 20th day of April, 2016

1 This dispute relates to a court ordered taxation of costs between a solicitor, Mr. Buckley and his former client, Mr. Doyle. It relates to allegations of overcharging and the alleged wrongful retention of a deposit held by Mr. Buckley for Mr. Doyle's account. It is important to bear in mind that this is not a taxation of costs that was done at the behest of a client, but rather as a result of a High Court judgment of Charleton J. on the 25th March, 2013 ( Doyle v Buckley [2013] IEHC 292).

Background

2 The matter was before Charleton J. because Mr. Doyle instituted plenary proceedings against his former solicitor, Mr. Buckley on the 5th July, 2011, claiming, inter alia, an account of monies which he alleges are owed to him. The order to tax was made by that Court to determine what amounts, if any, are owed to Mr. Buckley by Mr. Doyle for legal services, or in the alternative what amounts, if any, are to be repaid to Mr. Doyle by Mr. Buckley in the event of overcharging. In the words of Charleton J:-

‘It is utterly pointless to have a plenary hearing on issues of breach of contract, and in what ever other legal dressing the cause is pleaded, when central to the issue as to whether money was taken by the defendant wrongly is how much he was entitled to charge.’

3 This dispute also appeared before Murphy J. on the 18th July, 2011. Murphy J. made interlocutory orders requiring Mr. Buckley to account for the whereabouts of a deposit of €600,000 and noted an undertaking of Mr. Buckley's to preserve all records and to immediately and forthwith pay any monies that the Taxing Master might certify are payable to Mr. Doyle.

4 In the hearing before Charleton J., Mr. Doyle brought a motion for an order for taxation pursuant to s. 2 of the Attorneys and Solicitors (Ireland) Act, 1849, as amended by s.2 of the Legal Practitioners (Ireland) Act, 1876, or alternatively, an order under the inherent jurisdiction of the High Court referring Mr. Buckley's bill of costs to the Taxing Master. On the 25th March, 2013, Charleton J. ordered that two bills of costs, with the administrative numbers D215 and D226, be referred to taxation. These related to work done on a case known as the “Sandystream matter”. In addition, Charleton J. ordered that:-

‘The Taxing Master must adjudicate on the issues as to costs from the year 2000 onwards and may have to decide:-

(1) in respect of any matter whether a proper bill of costs was furnished or not; and

(2) whether evidence of voluntary payment by [Mr. Doyle] to [Mr. Buckley]… exists.

There is liberty to apply to the court on this motion by re-entry and simple brief affidavit on both sides should any intractable issue arise that is not capable of being dealt with in accordance with the principles set out herein.’

5 The matter was duly heard by the Taxing Master and he gave interim rulings on the 30th April, 2014, the 10th September, 2014, and the 11th September, 2014, and his final ruling on the 22nd May, 2015. In his rulings the Taxing Master taxed the two bills specifically referred to him, namely those with administrative numbers D215 and D226 and reduced the amounts charged on those bills. In his adjudication on the costs from the year 2000 onwards, he found that there were eight matters, with administrative numbers D151, D151/A1, D151/A2/A3, D151/A4, D151/A5, D240 (i)&(ii), D254, D151/A6 which fell within the terms of the order of Charleton J. and he taxed those bills accordingly. The net effect of the Taxing Master's rulings was that a sum in excess of €700,000 has been found by the Taxing Master to have been overcharged by Mr. Buckley to Mr. Doyle.

6 What appears before this Court is the judicial review of the ruling of the Taxing Master. In his statement grounding the application for judicial review before Noonan J. on the 27th July, 2015, Mr. Buckley sought leave to seek certiorari of the five bills with administrative number D151 and the bill with administrative number D240 (a total of six bills) on the grounds that these bills did not fall within the order of Charleton J. since proper bills of account had in fact issued and had been voluntarily paid by Mr. Doyle,

7 In this statement, Mr. Buckley also sought leave for an order of certiorari in relation to two bills with administrative numbers D254 and D151/A6. Mr. Buckley alleges that these two bills should not have been taxed as they fall outside the order of Charleton J. on the grounds that those bills had been delivered to Mr. Doyle and agreed in their respective amounts as an integral part of the settlement of actions by Mr. Buckley on behalf of Mr. Doyle.

8 Mr. Buckley also sought leave for an order of certiorari in relation to the bills with administrative reference D215 and D226 (the Sandystream matter) which were specifically referred to taxation by Charleton J. on the grounds that they were taxed by the Taxing Master on a party and party basis, when they should have been, in Mr. Buckley's view, taxed on a solicitor client basis, and he seeks an order of mandamus requiring the Taxing Master to tax those bills on a solicitor client basis. Mr Buckley also seeks an order of quo warranto against the Taxing Master.

9 The taxation of costs in this case is ancillary to the aforesaid High Court plenary proceedings in being between Mr. Doyle, as plaintiff, and Mr. Buckley, as defendant, since the taxation was ordered by the High Court judge hearing those plenary proceedings to enable that court resolve the amounts owed between the parties. Accordingly, the challenge to the taxation in this case must now be considered in that context.

Preliminary Matter

10 It was brought to this Court's attention on 18th April, 2016 when the Court was due to deliver it's judgment, that since the hearing of this matter on the 26th February, 2016, the Court of Appeal had delivered its judgment in the case of Dorgan v Spillane [2016] IECA 84. That Court of Appeal judgment considers the High Court decision of Doyle v Buckley [2013] IEHC 292 in which the ten bills of costs (which are the subject matter of this judicial review) were referred to taxation. The Court of Appeal in Dorgan v Spillane found that in Doyle v Buckley, Charleton J. incorrectly interpreted s. 2 of the Attorneys and Solicitors (Ireland) Act 1849, since in determining when a proper bill of costs has issued by a solicitor to a client, such that the time period for the client to challenge the bill of costs begins to run, he incorrectly found that to be a proper bill of costs for the purposes of that section, the bill of costs which is sent to the client had to be in the detailed seven column format in which bills of costs are required to be presented to the Taxing Master under of O. 99 r. 29(5), rather than the much less onerous requirements of s. 68(6) of the Solicitors (Amendment) Act, 1994, where a brief summary of the legal services provided can be sufficient for there to be a proper bill of costs.

11 This Court heard submissions from both parties in relation to the significance of the finding by the Court of...