Byrne v O'Conbhui
| Jurisdiction | Ireland |
| Judge | Mr. Justice McDermott |
| Judgment Date | 29 April 2016 |
| Neutral Citation | [2016] IEHC 219 |
| Docket Number | [1996/1099T] |
| Court | High Court |
| Date | 29 April 2016 |
[2016] IEHC 219
THE HIGH COURT
McDermott J.
[1996/1099T]
AND
AND
Tort – Personal injury – Damages & Restitution – Award of damages – Taxation of costs – Practice & Procedures – O.99, r. 38 of the Rules of the Superior Courts – Review of costs order
Facts: Following the award of damages by the High Court to the plaintiff in a personal injury action brought by the plaintiff against the defendants, and award of costs to the plaintiff for substantial proceedings as well as the costs of motions for time extension filed by the first named defendant before the Supreme Court, the first named defendant now sought an order for review of the taxation of costs. The first named defendant claimed that being an environmentalist, he was entitled for appropriate financial assistance by virtue of the Aarhus Convention as he required the expert advice of a legal cost accountant to ensure a fair hearing on the taxation issues.
Mr. Justice McDermott refused to grant the desired relief to the first named defendant. The Court held that under O. 99, r, 38, a party could apply for an order to review of the taxation, if there was any grievance related to the items taxed or in relation to the amount not appropriately taxed. The Court found that in the present case, since no issue had been raised concerning any particular item in the bill of costs considered by the Taxing Master, there was no basis to invoke the said Rule. The Court found that a challenge under the Aarhus Convention would be of no avail to the first named defendant as the order for costs emanated from a personal injury action and not environmental proceedings.
This is an application brought by the first named defendant seeking a review of the taxation of costs awarded to the plaintiff in the above entitled proceedings.
These proceedings arose out of a personal injuries action in which the plaintiff (a minor) claimed damages for injuries sustained while playing on a container on land occupied by the defendant and his brother, the second named defendant. On 10th May, 2004 the High Court awarded damages to the plaintiff pursuant to the provisions of the Occupiers Liability Act, 1995 and held that the defendants were jointly and severely liable for the injuries sustained by the plaintiff. On 8th October, 2004 the first defendant applied to the Supreme Court for an extension of time for leave to appeal against the order and judgment of the High Court. This was granted on the basis that the defendant would lodge the entirety of the monetary award in court pending the outcome of the appeal. The first defendant failed to comply with this condition. Six years later in November 2010 the defendant applied once again to the Supreme Court for an extension of time for leave to appeal which was dismissed on 21st January, 2011.
A number of orders for costs in favour of the plaintiff were made against the defendant in the course of these proceedings. These included:-
(a) An order of the Supreme Court dated 8th October, 2004 granting the plaintiff the costs of the defendant's motion seeking an extension of time within which to lodge an appeal to the Supreme Court;
(b) An order of the Supreme Court dated 21st January, 2011 granting the plaintiff costs of the defendant's motion seeking a further extension of time to appeal the decision of the High Court dated 10th May, 2004;
(c) An order of the High Court dated 4th June, 2002 (as amended by the Supreme Court on 27th May, 2005) granting the plaintiff the costs of the expenses of witnesses for attending the High Court on 4th June, 2002 when the trial of the action was adjourned at the request of the defendant; and
(d) An order of the High Court dated 10th May, 2004 granting the plaintiff the costs of the substantial proceedings.
Order 99 Rule 38 provides for review of taxation of costs. Order 38(1) provides that any party who is dissatisfied with an allowance or disallowance by the Taxing Master in respect of any item of costs may, before a certificate is signed by the Taxing Master 'carry in before the Taxing Master his objections in writing to such allowance or disallowance, specifying therein by a list in a short and concise form the items, or parts thereof, objected to, and the grounds and reasons for such objections, and may thereupon apply to the Taxing Master to review the taxation in respect of the same'. If objections are made, the Taxing Master is obliged to reconsider and review his/her taxation in respect of such objections and may receive further evidence concerning them. If required he/she should state in writing the grounds and reasons for the decision in respect of the objections.
Rule 38(3) provides:-
'Any party who is dissatisfied with the decision of the Taxing Master as to any items which have been objected to as aforesaid or with the amount thereof may within 21 days from the date of the determination of the hearing of the objections or such other time as the court ... may apply to the court for an order to review the taxation as to the same items and the court may thereupon make such order as may seem just ....'
Rule 38 Rule (4) provides:-
'The application to the court should be made by motion on notice to the other party concerned, such notice of motion to be filed in the Central Office and a copy thereof filed in the Office of the Taxing Master and the motion shall be heard and determined by the court upon the evidence which shall have been brought in before the Taxing Master, and no further evidence shall be received upon the hearing thereof, unless the court should otherwise direct.'
Following the determination of the issues raised by the court, the matter shall be remitted to the Taxing Master under Order 99 Rule 38(6) to complete the taxation in accordance with the decision of the court and to issue a final certificate of taxation.
The history of the proceedings is set out in the Taxing Master's report dated 8th May, 2015. The taxation process is accurately described by the Taxing Master as having followed 'a tortuous path'. There were numerous adjournments before the Taxing Master (initially Taxing Master Flynn) before Bills of Costs came before Taxing Master Mulcahy in June 2012. In the course of the taxation, Mr. McEvoy of Cyril O'Neill, Legal Costs Accountants appeared on behalf of the solicitors for the costs/plaintiff and the first named defendant represented himself.
An application for a grant of legal advice and representation was made by the first defendant to the Legal Aid Board which was ultimately unsuccessful. It later emerged that legal aid was refused in October 2012. The first defendant was directed to furnish evidence of his application for legal aid and the matter had been listed for mention on three occasions for that purpose but he failed to do so. On 27th November, 2012, the Taxing Master advised that she would proceed with the taxation.
The Taxing Master did not consider that Mr. O'Conbhui would be prejudiced by appearing in person without representation since lay litigants regularly appear in taxations before her. Her practice is to outline the procedure followed in guiding them through the process. She takes care to ensure that a lay litigant is asked for his/her submissions and given an opportunity to comment upon all matters that arise. The Taxing Master states that she carried out a detailed examination of the nature and extent of the work done by the solicitor and counsel and other items irrespective of whether the party opposing a taxation is represented or not. She also considered that the first defendant had experience in appearing on his own behalf and making applications in the Superior Courts and was aware that he had acted as a McKenzie friend on behalf of other lay litigants in High Court proceedings. No issue is taken with the manner in which the taxation process or hearings were conducted by the Taxing Master.
The Taxing Master summarised her conclusions in respect of the substantive High Court action at pages 10 to 12 of the Report. She noted that the addition of a co-defendant in the proceedings necessitated the delivery of amended pleadings and...
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Byrne (A Minor) v Ó Conbhuí
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Byrne (A Minor) Suing by his father and next friend v O'Conbhui
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