Buckley v O'Neill (Taxing Master)

• Jurisdiction: Ireland
• Judge: Mr. Justice Binchy
• Judgment Date: 09 November 2018
• Neutral Citation: [2018] IEHC 717
• Docket Number: [2017 No. 41 MCA.]
• Court: High Court
• Date: 09 November 2018

[2018] IEHC 717

THE HIGH COURT

Binchy J.

[2017 No. 41 MCA.]

IN THE MATTER OF

JOHN J. BUCKLEY

APPLICANT

AND

DECLAN O'NEILL (TAXING MASTER)

RESPONDENT

AND

DENIS DOYLE

PARTY INTERESTED

Taxation – Bill of costs – Review – Applicant seeking a review of the taxation conducted by the respondent – Whether the respondent had jurisdiction to tax any of the bills

Facts: The applicant, Mr Buckley, applied to the High Court to review decisions of the respondent, Mr O’Neill, dated 13th January, 2017, on objections raised by the applicant to the respondent’s taxation of bills of costs furnished by the applicant to the party interested, Mr Doyle, insofar as the objections raised related to the quantum of allowances and/or disallowances made by the respondent in the taxation.

The applicant argued that the respondent should not have taxed at all those bills to which the party interested had indicated his agreement and given his authority to discharge the same from funds standing to his account. He claimed that the respondent had no jurisdiction to tax those bills and misunderstood or misinterpreted the decision of Charleton J insofar as it dealt with accounts which had been discharged by the party interested. He submitted that his signature appearing on a list of files prepared by the respondent was not a consent to the taxation of those files but merely a recognition of those files which the respondent himself had determined to tax, having reversed an earlier decision not to tax certain bills by reason of the bills having been voluntarily discharged. Insofar as the respondent relied upon the statement made by the applicant that he had “no problem taxing any of [my] bills”, the applicant submitted that this was a general statement intended to convey that the applicant believed that his charges would stand up to scrutiny and was not intended to be a concession that prior agreements could be ignored or set aside. Moreover, he submitted that in any event he presumed that the respondent would apply the conclusive presumption contained in O. 99, r. 11(3) of the RSC in any taxations that followed. He submitted that the effect of O. 99, r. 11(3) is that any bill paid under the written authority of the party interested is not amenable to taxation, or alternatively should be allowed in full on taxation. He submitted that the respondent then failed to apply that conclusive presumption in the taxation of bills for which had been furnished and agreed by the party interested. He submitted that the respondent arrived at conclusions adverse to the applicant without any evidence supporting those conclusions. He submitted that some of the files that were available for taxation were merely “skeletal” by reason of their age (the applicant having disposed of significant parts of same for that reason) and the fact that the party interested had requested taxation five or more years after those accounts had been agreed and settled; through no fault of the applicant therefore, they were incomplete for the purposes of taxation and did not fairly represent the work undertaken by the applicant. He objected to the respondent taxing the detailed bills prepared at the direction of the respondent’s predecessor, in circumstances where the bills prepared and furnished by the applicant at the conclusion of the transactions concerned were valid bills amenable in law to taxation. He submitted that the respondent taxed two bills which were acknowledged and agreed both by the party interested and by his legal costs accountant to be agreed and which they therefore confirmed to the respondent did not require taxation. He submitted that the respondent taxed a number of the accounts applying principles appropriate to a solicitor and client taxation of costs, in circumstances where all bills should have been taxed on a solicitor and own client basis. He submitted that it was inappropriate for the respondent to examine the applicant’s files in the context of a solicitor and own client taxation in the absence of evidence that the charges were unreasonable. He submitted that there is no obligation on solicitors to keep detailed records of time and while the applicant did keep records, he was not asked to produce the same. He also made specific submissions in relation to specific deductions.

Held by Binchy J that he rejected the arguments of the applicant that the respondent did not have jurisdiction to tax any of the bills other than bills D215 and D226, and he rejected in full the application for a review of the taxation conducted by the respondent in each case, save for the qualification relating to the fees claimed in respect of Mr Farrelly, a consultant retained by the party interested directly.

Application refused.

JUDGMENT of Mr. Justice Binchy delivered on the 9th day of November, 2018

1 This judgment is concerned with an application to review decisions of the respondent dated 13th January, 2017, on objections raised by the applicant to the respondent's taxation of bills of costs furnished by the applicant to the party interested, insofar as the objections raised relate to the quantum of allowances and/or disallowances made by the respondent in the taxation. It is something of an understatement to say that the background to this application is complex and indeed it is difficult to conceive of a case with a more eventful background leading up to an application of this kind.

2 It is not in dispute that the applicant acted on behalf of the party interested in a variety of matters throughout the 1990s and 2000s up until they had a disagreement about costs owing and, in most cases already discharged, by the party interested to the applicant, by reason of which disagreement the party interested ultimately issued a summons to tax on 24th July, 2011. However, prior to doing so, the party interested had issued proceedings against the applicant whereby he seeks orders, inter alia, requiring the applicant to provide a full account of his treatment of the sum of €600,000.00, which had been paid to the applicant (on behalf of the party interested) in respect of a deposit on the sale of lands by the party interested. The deposit had been forfeit (owing to the liquidation of the purchaser) and belonged to the party interested. By those proceedings the party interested also sought orders requiring the applicant to pay the party interested the deposit, together with interest as well as orders for damages under various headings.

3 Simultaneous to the issue of proceedings, the party interested also sought interlocutory relief with a view to obtaining orders seeking an account in relation to these monies. On 18th July, 2011, Murphy J. made orders, inter alia, requiring the applicant to account for the whereabouts of the €600,000.00. In an affidavit sworn on 22nd July, 2001, the applicant deposed that there was just €45,146.99 remaining in his client account to the credit of the party interested. €35,000.00 had been paid by the applicant to the liquidator of the company that paid the deposit (pursuant to a settlement entered into with the liquidator) and the balance had been applied towards fees, outlay and VAT which the applicant claimed were due to him by the party interested, and a significant proportion of which the applicant claims in this application was specifically authorised (in writing) by the party interested for payment to the applicant. In an affidavit sworn on 28th July, 2011, the applicant stated (at para. 11):-

‘I say that should it transpire in taxation, that I am mistaken in my belief that fees remain due and outstanding to my firm, and that any sum is properly due to the plaintiff, I have previously given to this Honourable Court undertakings, which I am happy to repeat, that I will repay any such sum to the plaintiff upon the Taxing Master's determination of the outstanding issues.’

4 The taxation of the applicant's bills was initially dealt with by Taxing Master Flynn and the matter was mentioned before him on a number of occasions between 18th July, 2011, and 14th December, 2011 when Taxing Master Flynn retired. At some stage during this period, Taxing Master Flynn directed that the applicant prepare and furnish detailed bills of costs in accordance with the format required for taxation. While the applicant subsequently complied with that order, in this application he takes issue with that direction because he maintains that he had previously furnished valid bills of costs (albeit not in the seven column format required for taxation) to the interested party, and that it is those bills of costs should have been subjected to taxation. I will return to this point, and its relevance, later.

5 The taxation proceedings were next listed before the new Taxing Master, Master O'Neill, on 2nd March, 2012. He was dissatisfied with the form of summons to tax which he considered to be bad on its face because it recited no basis to ground a Taxing Master's jurisdiction to embark upon a taxation of costs as between a solicitor and own client. Nor did the summons to tax specify any bills which should be subjected to taxation. As a result, the party interested brought forward an application to this Court seeking an order for taxation pursuant to s. 2 of the Solicitors (Ireland) Act 1849, as amended by the Legal Practitioners (Ireland) Act 1876 or alternatively an order under the inherent jurisdiction of the High Court referring the applicant's bills of costs to the Taxing Master. This application came before Charleton J. who delivered a written judgment in respect thereof on 25th March, 2013 ( Doyle v. Buckley [2013] IEHC 292). This judgment concluded with the following order at p. 5:-

‘Bills D215 and D226 are referred to taxation. All of the charges made by the defendant of the plaintiff are to be proved before the Taxing Master. In respect of any matter where a proper bill of costs furnished by the defendant...