Commissioners of Irish Lights v Maxwell

• Jurisdiction: Ireland
• Judge: Keane J.
• Judgment Date: 01 January 1998
• Neutral Citation: 1998 WJSC-SC 4814
• Court: Supreme Court
• Docket Number: [S.C. No. 189 of 1996]
• Date: 01 January 1998

1998 WJSC-SC 4814

THE SUPREME COURT

O"Flaherty J.,

Barrington J.,

Keane J.

189/96

COMMISSIONERS OF IRISH LIGHTS v. MAXWELL, WALDON & DARLEY

BETWEEN:

The Commissioners of Irish Lights

Applicants/Appellants

and

Maxwell Weldon and Darley

Respondents

Citations:

HOWARD V COMMISSIONER FOR PUBLIC WORKS IN IRELAND 1994 1 IR 101

GRIFFIN V DAIRYGOLD EX-TEMPORE

NORISH V DEXION (IRL) LTD EX-TEMPORE

PARKES & SONS LTD V HONG KONG & SHANGHAI BANKING CORP 1990 ILRM 341

CROTTY V AN TAOISEACH (NO 2) 1990 ILRM 617

SMYTH V TUNNEY 1993 1 IR 451

Synopsis

- [1998] 1 ILRM 421

1 JUDGMENT delivered the 1st day of December 1997 by Keane J.

2 This is an appeal from a judgment and order of the High Court (Barron J.) in which he dismissed an application on behalf of the Applicant for a review of a taxation of costs by Master Flynn. Only two items were in dispute in the High Court: the brief fee allowed to counsel and the refresher fees allowed to counsel. The appeal in respect of the second item was not pursued.

3 The Respondents were acting on behalf of the Applicants in an appeal brought by them to An Bord Pleanala arising out of a refusal by Clare Co. Council to grant planning permission to the Applicants for the construction of an aid to navigation and ancillary works at Feeard, Cross, Loophead, Co. Clare. One counsel, a senior counsel, was briefed by the Respondent to appear on behalf of the Applicants at the oral hearing of the appeal which was heard in Ennis over a period of 9 days commencing on the 28th June 1994 and ending on 13th July 1994. Although the application for planning permission was brought in the name of the Applicants, that body was, at all times, acting on behalf of the Minister for the Marine.

4 The senior counsel who was nominated by the Applicants to appear on their behalf at the oral hearing was duly instructed by the Respondents. The Applicants asked the Respondents to furnish them with an estimate of the total costs for the benefit of the Department of the Marine. In response to an enquiry from the Respondents, counsel indicated that the brief fee would be a minimum of 30,000 guineas and that the refresher fees would be 3,000 guineas per day.

5 The Department of the Marine consulted the Attorney General's office as to the level of the fees proposed to be charged and were advised by them that they considered that senior counsel's brief fee should be 7,500 guineas and the refreshers 1,500 guineas. Senior counsel, having been informed of this view, wrote to the Respondents pointing out that he had done no more than give an estimate of what his brief fee might be. He said that ultimately he proposed to mark whatever brief fee he considered appropriate, having regard to the totality of the amount of work he would have to invest in the case. He added that if, in due course, the Department considered the fees marked to be excessive, he would consider what they had to say and, if necessary, have the fees taxed.

6 The Respondents in a letter to the Applicants dated 12th August 1994 set out the factors which, they said, counsel considered were relevant to the fees to be charged by him:-

7 a "(a) Advices provided from a very early stage on all aspects of the appeal documentation.

8 (b) Apart from the written advice and proofs all advices were given as issues arose on weekly and sometimes on a daily basis.

9 (c) As the hearing date approached it was necessary to deal with telephone calls and faxes on a daily basis.

10 (d) He appeared at the hearing without the assistance of junior counsel.

11 (e) He had to commit himself exclusively to the hearing for an indeterminate period the consequences of which were serious when the hearing initially estimated by An Bord Pleanala to take 2 days ran over a period of 3 weeks. As a result he had to obtain releases from a number of other cases in respect of which he had already given commitments with consequent exposure to dissatisfaction from clients and instructing solicitors and with the inability to obtain any financial return from cases in respect of which he had already done a large amount of preparatory work for trial. The hearing overlapped (for three days) with the sittings of the High Court in Cork where he invariably has a substantial workload and he had to return a large number of briefs at the last moment for those sittings. This is likely to have a knock on effect in terms of the number of briefs that he holds in the High Court in Cork for the October sittings.

12 (f) On most days the hearing lasted from 9.30am to 6pm which, given the level of attention and concentration required, comparing it to the standard hours during which the courts function is particularly long. On 2 days the Inspector sat as late as 7pm. If senior counsel was required to devote such hours to a court hearing it would be normal to mark 2 refreshers per day and indeed such was recognised by the Director of Public Prosecutions and the Department of Justice on the criminal side.

13 (g) The issue at stake was an important one in terms of public policy and the international standing of the State which had entered into multi-lateral commitments with other countries.

14 (i) The hearing took place over 150 miles from his chambers, which not only involved long hours spent travelling but also the usual administrative difficuties involved in absence from an office.

15 (j) Not only were the hearing hours particularly long but formal consultations were held most evenings between 8pm and 9pm (for which he did not charge separately) and informal consultations were held before each day's hearing and at every break in the hearing."

16 Counsel's brief fee and refresher fees were allowed in full by the taxing master, as was the solicitor's instructions fee. Objections were brought in on behalf of the Applicants to all the fees and heard before the taxing master. In his report dated 21st December 1995 the taxing master disallowed the objections. A motion to review the taxation in respect of a number of items was then brought before Barron J., but the only items in respect of which the objections were pursued were counsel's brief fee and the refresher fees. In a reserved judgment, Barron J. upheld the taxing master's findings in respect of both items. As already noted, the appeal before us was confined to the brief fee. An argument which had been advanced before the taxing master that senior counsel's fees were subject to the approval of the Attorney General was not pursued in the High Court or in this court.

17 Evidence was given in the High Court by two legal cost accountants. Mr. Peter Fitzpatrick, for the Applicants, said that in his opinion, the appropriate brief fee was £15,000. Neither he nor Mr. Declan O"Neill, the legal cost accountant who gave evidence on behalf of the Respondents, was in a position to assist the Court with any taxation of counsel's fees in respect of an oral hearing of this nature. Mr. Fitzpatrick, however, was of the view that two recent cases in the High Court concerning planning matters were of assistance. Both of them arose from the construction by the Commissioners for Public Works of interpretative centres at Mullaghmore, Co. Clare and Luggala, Co. Wicklow. The Luggala case lasted 7 days in the High Court with oral evidence and legal submissions on the issue as to whether permission was required by the commissioners in respect of such buildings. Senior counsel in that case had marked a fee of £15,750 as a brief fee which was subsequently reduced by agreement to £13,125. In the Mullaghmore case (which is reported sub nom Howard and others -v- the Commissioners for Public Works in Ireland [1994] 1IR 101 there was also oral evidence and again legal issues arose as to the necessity to obtain planning permission. Senior Counsel marked a brief fee of £15,750 in that case. He also referred to the well known wardship case, sometimes described as the "...