Crown Chemical Company (Ireland) Ltd v Cork County Council

• Jurisdiction: Ireland
• Judge: Gannon, J.
• Judgment Date: 01 January 1984
• Neutral Citation: 1984 WJSC-HC 219
• Court: High Court
• Docket Number: No. C.I. 62/1977
• Date: 01 January 1984

1984 WJSC-HC 219

THE HIGH COURT

No. C.I. 62/1977

CROWN CHEMICAL CO.(IRL) v. CORK CO.COUNCIL

BETWEEN:

CROWN CHEMICAL COMPANY (IRELAND) LIMITED

Applicants

and

CORK COUNTY COUNCIL

Respondents

Subject Headings:

PRACTICE: costs

1 JUDGMENT of Gannon, J., delivered the 14th day of October 1983

2 This motion for review of a taxation of party and party costs relates only to items of disbursements for witnesses expenses. The notice of motion does not conform to that usual to a motion of this nature but the parties have agreed that the only items on the Bill of Costs in respect of which objections were brought in to the disallowances for consideration on this review are those numbered 116, 117, 118, and 119.

3 The solicitor to the costs was retained on behalf of the applicants Crown Chemical Company (Ireland) Limited for a claim against Cork County Council for compensation for the criminal injury by setting fire to Avondhu House, Mallow in County Cork on the 13th January 1977. The applicants successfully obtained in the Circuit Court a finding that the damage was caused maliciously or wantonly and an award of compensation of such an amount as would be determined by arbitration. Subsequent to the agreed arbitration and the determination and award of the arbitrator the respondents appealed to the High Court on circuit from the Circuit Court Order. At the sitting of the High Court on circuit in Cork on the 5th Marsh 1980 a compromise was reached and by consent an award based upon a finding of malicious damage of compensation measured at half the amount determined on arbitration was entered for the applicants. The applicants were awarded their costs and these fell to be taxed by the County Registrar pursuant to Order 61 rule 12 of the Rules of the Superior Courts but in accordance with the provisions of Order 99 of those rules. Rule 37(8) of Order 99 which provides for the taxation of disbursements for witnesses expenses as amended by S.I. 38 of 1971 is as follows:

"Such reasonable charges and expenses as appear to have been "properly incurred in procuring evidence, and the attendance of witnesses, are to be allowed. In respect of any witness, or a group of witnesses travelling together, the Taxing Master may allow by way of travelling expenses the actual cost of transport by a hired motor car, or for the use by a witness of his private motor car at such rate per mile as to the Taxing Master shall seem reasonable, when it is demonstrated to him that such hire or use did not exceed the cost of travel by available transport or otherwise resulted in a saving to the party chargeable. The reasonable expenses and allowances of witnesses to attend a consultation or conference properly held prior to the trial shall be chargeable on taxation as between party and party."

4 Upon the taxation before the County Registrar the solicitor to the costs sought to recover from the opposing party at Item 116 of his Bill the sum of £1,999.94. This was in respect of disbursements to Professor McAleese an expert witness whose evidence on chemical and technical matters relating to combustion was directed primarily to the discharge of the onus of proof on the issue of malice. The amount of £3,576.10 claimed at Item 117 was in respect of disbursements to Mr. A. Brennan an engineer whose evidence on technical matters of design and construction was supportive of evidence on both malice and assessment of damage. The amount of £1,257.03 claimed at Item 118 is in respect of disbursements to Messrs Delap and Waller whose representative Mr. A. Tennyson gave evidence in relation to mechanical function. At Item 119 the solicitor to the costs claimed a sum of £3,560.00 in respect of disbursements to Mr. C.A: Smith a quantity surveyor whose evidence was required primarily on assessment of the value of damage. In relation to these claims for disbursements the County Registrar on taxation made substantial disallowances to which objections were made and against the disallowances made by the County Registrar on the hearing of these objections this application comes before the Court.

5 On this hearing of this motion the Bill of Costs and the County Registrar's report on his taxation are before the Court. The only oral evidence offered to the County Registrar upon his taxation was that of Mr. A. Comyn the solicitor to the costs. On the hearing of this motion Mr. Comyn gave evidence, and leave was also given to adduce evidence from Mr. Brennan, Mr. Tennyson and Mr. Cooke. At the trial in the Circuit Court the County Registrar was present and acted in the capacity of registrar and was also acting as registrar to the High Court on the appeal to that Court. As a consequence he was in a particularly advantagous position to appreciate the issues in dispute and the significance of the expert evidence of these several witnesses.

6 In his report to this Court the County Registrar gives a summary of the course of the various Court hearings and orders. The following introductory paragraph appears in his report prior to dealing with the items of objections seriatim.

"The taxation of costs took place on the 22nd July 1981 and I was attended by Messrs A. Comyn, solicitor for the applicants and the solicitor to Cork County Council. I acted as Registrar in the High Court on circuit on the hearing of the appeal and was in attendance in Court the whole time and accordingly I had full knowledge of all the points in the case and arguments made and was not approaching the taxation unaware of the amount of work and evidence entailed and given in the latter. In the taxation I had regard also to the Court decision in the "Garvey" case and that Dunne .v. O'Neill 1974 I.R. 180 did not apply having regard to what was marked on counsel's signed brief."

7 A number of items were referred to in the report which are not the subject of this application. The paragraphs of the report which relate to the items with which this application is concerned are as follows:

" Item 116: D. McAleese - gave evidence on three days. Annexed "to the original Bill of Costs is a yellow slip of paper on which I made my original calculations at the taxation and in respect of which I allowed him a sum of £578.82. I was not in any way influenced by the order of the learned High Court judge impounding the graphs produced by this witness. I considered the amount allowed as reasonable and prudent having regard to the nature and type of evidence being offered."

8 Item 117: Anthony Brennan B.E. amount claimed £3576.10 amount allowed £346 as calculated on yellow slip at time of taxation.

9 Mr. Brennan's account when I examined it showed for an engineer the surprising fact of two major errors in the figures namely a figure of £58 for travelling was shown in the account as £580 and there was an error of £100 in the tot of the whole amount. I further could not agree that there were 400 colour photos (this was not a jury action). Drawings are charged at £420 in one place and £42 in another place.

10 Outside the above matters I would refer to the arbitration award of £115,308.88 and the details thereof which are on the file and which were before me and my own notes thereon. It will be seen that the arbitrator in his award allowed professional fees of £12,830.03 (included in the full amount) which in normal practice are fees to cover investigation of fire claims and preparing accounts of losses and for rebuilding and are a normal inclusion in a comprehensive insurance policy and I must take note of the fact, that as the final settlement of the claim was for one half of the amount of the arbitrator's award that there was therefore included in the award a sum of £6,415 to cover various "professional fees.

11 Item 118: A.N. Tennyson amount claimed £1,257.03 amount allowed £453.26. The account as furnished contained no information and accordingly I worked figures out on yellow slip annexed to original Bill.

12 Item 119: C.A. Smith quantity surveyor amount claimed £3,560 amount allowed £273. There seemed to be duplication between the work of A. Brennan B.E. and this witness and as well claims such as Youghal Circuit Court £315 three days when the matter was merely adjourned made me consider this bill carefully especially when the amount claimed was far larger than the amount paid to senior counsel Niall McCarthy S.C. I also took into consideration the provision of the £6,415 professional fees allowed being half the amount of the arbitrator's award and also having regard to the amount of work carried out by the arbitrator and his total fees of £851."

13 In his oral evidence in support of this application the solicitor to the costs, Mr. A. Comyn, stated that he and the solicitor for the respondents attended before the County Registrar upon the taxation but no evidence was presented. Mr. Comyn expressed clearly and with strong conviction his opinion as to the correctness and reasonableness of the charges submitted to him by the expert witnesses and the necessity for and importance of their evidence. He stated that before the County Registrar upon the taxation he expressed the same opinions with the like conviction but did not tender any...