Cremin v Lynch
| Jurisdiction | Ireland |
| Judge | Mr. Justice Herbert |
| Judgment Date | 27 May 2008 |
| Neutral Citation | [2008] IEHC 161 |
| Court | High Court |
| Date | 27 May 2008 |
[2008] IEHC 161
THE HIGH COURT
BETWEEN
AND
RSC O.99 r38(3)
LOWE TAVERNS (TALLAGHT) LTD v SOUTH DUBLIN CO COUNCIL & THE SQUARE MANAGEMENT LTD UNREP MCGOVERN 28.11.2006 2006/34/7313 2006 IEHC 383
RSC O.58 r12
RSC O.52 r1
RSC O.52 r2
RSC O.121 r2
RSC O.124
RSC O.10 r1
RSC O.9 r15
RSC O.52 r17
COURTS & COURT OFFICERS ACT 1995 S27(2)
DHAND v McCRABBE 96 ILTR 197
SUPERQUINN LTD v BRAY URBAN DISTRICT COUNCIL (UDC) & ORS 2001 1 IR 459
SMYTH v TUNNEY 1999 1 ILRM 211
SOLICITORS ACT 1954 S2
SOLICITORS ACT 1954 S55(1)
SOLICITORS (AMDT) ACT 1994 S2
SOLICITORS ACT 1954 S57(1)
SOLICITORS ACT 1954 S56(1)
SOLICITORS ACT 1954 S56
SOLICITORS ACT 1954 S57
FOSTER, RE 1878 8 CH D 598
GARTHWAITE v SHERWOOD 1976 2 AER 1015
MARTIN v SHERRY 1905 2 IR 62
SOLICITORS (IRELAND) ACT 1898 S48
TOBIN & TWOMEY SERVICES LTD v KERRY FOODS LTD 1999 1 ILRM 428
QUINN v SOUTH EASTERN HEALTH BOARD UNREP PEART 30.11.2005 2005/51/10765 2005 IEHC 399
BLOOMER v INCORPORATED LAW SOCIETY OF IRELAND & AG 2000 1 IR 383 1999/3/397RSC O.99 r37(22)(ii)
BEST v WELLCOME FOUNDATION LTD 1996 3 IR 378
COURTS & COURT OFFICERS ACT 1995 S27(1)
PRACTICE AND PROCEDURE
Costs
Taxing master - Review - Costs of motion to dismiss appeal to Supreme Court - Whether error in principle in disallowing costs of service of motion - Mode of service not reasonably necessary - Mode of service not in accordance with rules - Whether error in principle in disallowing fee for junior counsel - Failure to assess reasonableness by reference to circumstances of particular case - Whether error in principle in disallowing mileage charges for person attending on behalf of solicitor - Legal executive - Unqualified person - Whether proper and reasonable for person with carriage of case to attend - Whether error in principle in conclusion on amount to be allowed as instructions fee - Onus of proof - Lowe Taverns (Tallaght) Ltd v South Dublin Co Co [2006] IEHC 383 (Unrep, McGovern J, 28/11/2006), Dhand v McCrabbe (1960) 96 ILTR 196, Superquinn Ltd v Bray UDC [2001] 1 IR 459, Minister for Finance v Goodman (No 2) [1999] 3 IR 333, Smyth v Tunney [1999] 1 ILRM 211, Re Foster [1878] 8 Ch Div 598, Garthwaite v Sherwood [1976] 2 All ER 1015, Martin v Sherry [1905] 11 KB 62, Tobin v Kerry Foods Ltd [1999] 1 ILRM 428, Quinn v South Eastern Health Board [2005] IEHC 399 (Unrep, Peart J, 30/11/2005), Bloomer v Incorporated Law Society of Ireland (No 2) [2000] 1 IR 383 and Best v Wellcome Foundation Ltd (No 3) [1996] 3 IR 378 considered - Solicitors Act 1954 (No 36), ss 2, 55, 56 and 57 - Courts and Courts Officers Act 1995 (No 31), s 27 - Rules of the Superior Courts 1986 (SI 15/1986), O 10, 52, 58, 99 and 121 - Appeal in respect of costs of counsel and mileage allowed and appeal in respect of costs of service and instructions fee disallowed (2004/3783P - Herbert J - 27/5/2008) [2008] IEHC 161
Cremin v Lynch
Facts: The issue arose in a review of a decision of the Taxing Master as to costs whether inter alia an item disallowed on the basis that the individual acting was a legal executive and not a solicitor and whether a fee for counsel was to be disallowed on the basis that town agents could have been instructed. The issue also arose as to the appropriate mileage rate to charge and whether the number of counsel briefed was excessive.
Held by Herbert J. that the solicitors for the costs had not established that the Taxing Mater erred in principle in reaching the conclusion as to the item on the Bill of Costs relating to instruction of counsel on a motion for substituted service. The sum allowed was within the range of figures open to him. The sum allowed was not unjust and the decision of the Taxing Master would be confirmed in this respect. The mileage rate claimed on another item was inappropriate. The taxing master erred in concluding that it was not reasonable to brief two counsel.
Reporter: E.F.
JUDGMENT delivered by Mr. Justice Herbert on the 27th day of May, 2008
This appeal is brought under O. 99, r. 38(3) of the Rules of the Superior Courts, pursuant to the provisions of s. 27(3) of the Courts and Court Officers Act 1995, which provides 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 to 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."
The many decisions relating to the interpretation of this section have most usefully been collected, analysed and the principles found identified, by McGovern J. in Lowe Taverns (Tallaght) Limited v. The County Council of the County of South Dublin and The Square Limited [2006] I.E.H.C. 383. I do not consider it necessary in this case to repeat those principles so lucidly expressed by McGovern J. in that case.
By a notice of motion dated the 3 rd May, 2005, the defendant, pursuant to the provisions of O. 58, r. 12 of the Rules of the Superior Courts, sought an Order of the Supreme Court striking out the appeal of the plaintiffs, dated the 19 th August, 2004, from the judgment and order of the High Court made and delivered on the 26 th July, 2004, dismissing their claim as an abuse of the process of the court. The defendant claimed that the plaintiffs/appellants had failed to lodge the Books of Appeal without delay and had failed to prosecute their appeal.
The nature of the plaintiff's claim in this action is of great significance. The plaintiffs alleged that the defendant, in the conduct of his profession as a Barrister, was responsible for initiating a fraudulent set of proceedings to be taken against them by Tony and Eileen Hartigan; that he assisted these persons in making false claims against the plaintiffs when he knew that there was no basis for these claims and no way of proving them; that he acted in concert with his instructing solicitor in preparing and advancing a fraudulent affidavit and, that he acted out of malice and in order to pervert the course of justice and with the intent of intimidating and harassing the plaintiffs in the expectation of a substantial monetary gain to himself. It would be difficult to think of a more serious and damaging allegation against a Barrister in the course of his profession. Even the fact of the very existence of such claim is capable of causing serious and possibly even irreparable damage to the professional standing of the defendant and is a matter of the utmost gravity. This is particularly so having regard to the statements made in writing by the third named plaintiff that he would bring the existence of the proceedings to the attention of the Attorney General and the Human Rights Commission.
This Court was told that the solicitors for the defendant endeavoured unsuccessfully to serve this notice of motion personally on the plaintiffs. On an application ex-parte to the Supreme Court made on the 27 th May, 2005, that Court gave liberty to the defendant to effect service of the notice of motion and grounding documents on the plaintiffs by ordinary pre-paid post. The Supreme Court reserved the costs of that application. This Court was advised that in June, 2006, the Supreme Court was advised that the plaintiffs were discontinuing their appeal and on the 12 th January, 2007, the Supreme Court awarded all the costs of the appeal to the defendant.
By a letter dated 29 th June, 2005, sent by telefax transmission to the solicitor for the defendant, the third named plaintiff stated that the Books of Appeal had been lodged in the Supreme Court Office on 28 th June, 2005, and asked them to confirm that they would not proceed with the motion to strike out. By Email transmission dated 30 th June, 2005, the solicitors for the defendant replied that they were proceeding with the motion. At the hearing of the motion before the Supreme Court, the defendant was represented by Senior and Junior Counsel, attended by a person described on Taxation as a "Legal Executive" from the firm of Instructing Solicitors. The plaintiffs represented themselves. By Order made 1 st July, 2005, the Supreme Court struck out the motion but awarded the defendant the Costs of motion when taxed and ascertained.
A Bill of Costs dated 15 th December, 2005, in relation to the notice of motion of 3 rd May, 2005, and the Order made thereon by the Supreme Court on the 1 st July, 2005, was submitted to the taxation of a Taxing Master of the High Court. This Bill of Costs contained the following Items:-
"15. Service thereof [Notice of Motion] €247.50"
32. Paid his fee [Junior Counsel] €1,000
35. Mileage 244 return at €1.32 per mile [travel from Limerick to Dublin for hearing of motion on 1 st July, 2005] €322.08
37. Instructions to act [Solicitors Instructions Fee] €3,000."
The costs were taxed by Taxing Master Flynn on the 20 th February, 2006. A Notice of Objections was delivered by the solicitors for the costs on the 1 st March, 2006, requiring the Learned Taxing Master to review his taxation. The Report of the Learned Taxing Master to this Court consequent upon the hearing of the objections is dated the 17 th July, 2006. The present appeal to this Court by the solicitors for the costs relates exclusively to the above indicated Items. The Learned Taxing Master disallowed Items 15, 32 and 35 and dismissed the objection in relation to them. As regards Item 37, the Learned Taxing Master increased the Instructions Fee of €1,500 allowed on taxation to €1,600.
As regards Item 15 of the Bill of Costs the learned Taxing...
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