D(C) v Minister for Health & Children
| Jurisdiction | Ireland |
| Judge | Mr. Justice Herbert |
| Judgment Date | 23 July 2008 |
| Neutral Citation | [2008] IEHC 299 |
| Court | High Court |
| Date | 23 July 2008 |
[2008] IEHC 299
THE HIGH COURT
BETWEEN
AND
HEPATITIS C COMPENSATION TRIBUNAL ACT 1997 S6(3)(E)
HEPATITIS C COMPENSATION TRIBUNAL ACT 1997 S5(15)
RSC O.99 r38(3)
COURTS AND COURT OFFICERS ACT 1995 S27(3)
ORMOND (AN INFANT) v IRELAND, AG & ORS 1988 ILRM 490 1987/8/2117
BEST v WELLCOME FOUNDATION LTD & ORS 1996 3 IR 378 1996 1 ILRM 34 1995/6/1810
RSC O.99 r37(22)(ii)
PROPERTY & REVERSIONARY INVESTMENT CORP LTD v SECRETARY OF STATE FOR THE ENVIRONMENT 1975 2 AER 436
MCGRORY v EXPRESS NEWSPAPERS PLC & JUNOR UNREP MURPHY 21.7.1995 1998/25/9872
SMYTH v TUNNEY 1993 1 IR 451 1991/13/3320
SUPERQUINN LTD v BRAY URBAN DISTRICT COUNCIL & ORS (NO 2) 2001 1 IR 459 1999/23/7593
MIN FOR FINANCE v TAXING MASTER FLYNN UNREP CARROLL 9.2.1996 1996/7/1846
BLOOMER & ORS v INCORPORATED LAW SOCIETY OF IRELAND & ORS (NO 2) 2000 1 IR 383 1999/3/397
COURTS AND COURT OFFICERS ACT 1995 S27(2)
COURTS AND COURT OFFICERS ACT 1995 S27
QUINN v SOUTH EASTERN HEALTH BOARD UNREP PEART 30.11.2005 2005/51/10765 2005 IEHC 399
PRACTICE AND PROCEDURE
Costs
Appeal from taxing master - Costs of appeal of decision of Hepatitis C Compensation Tribunal - Amount of solicitors general instructions fee - Whether decision unjust - Whether failure to carry out objective assessment of work claimed - Whether failure to give reasons regarding appropriate amount of deduction - Whether inappropriate and incompatible comparators employed - Reduction to reflect residue of knowledge derived from hearing before tribunal - Power of court to review decision - Ormond (an infant) v Ireland (Unrep, Barron J, 29/5/1997), Best v Wellcome Foundation Ltd (No 3) [1996] 3 IR 378, Property and Reversionary Investment Corporation Limited v Secretary of State for the Environment [1975] 2 All ER 436, McGrory v Express Newspapers Plc (Unrep, Murphy J, 21/7/1995), Superquinn Limited v Bray Urban District Council [2001] 1 IR 459, Minister for Finance v Taxing Master Flynn (Unrep Herbert J, 31/7/2003), Bloomer v Incorporated Law Society of Ireland (No 2) [2000] 1 IR 383 and Quinn v South Eastern Health Board (Unrep, Peart J, 30/11/2005) considered - Courts and Courts Officers Act 1995 (No 31), s 27 - Rules of the Superior Courts 1986 (SI 15/1986), O 99 - Matter remitted to be reassessed by different taxing master (1999/122CT - Herbert J - 23/7/2008) [2008] IEHC 299
D v Minister for Health and Children
Facts: The respondents sought to appeal a decision of the Taxing Master in respect of a general instruction fee of €51,000 allowed by him in respect of the taxation of a bill of costs. The dispute arose in respect of a one day appeal to the High Court, where an ex tempore decision was delivered immediately thereafter. The High Court had increased substantially the damages awarded by the Hepatitis C Compensation Tribunal. The Solicitors claimed that the appeal to the High Court was particularly complicated and required the carrying out of research and investigative work. The issue arose as to the repetitious nature of the appeal carried out by the solicitors and whether the instruction fee was to be reduced accordingly.
Held by Herbert J. that justice required that the general instruction fee be reduced to take account of the factors identified by the taxing master. A fifty percent reduction would be appropriate, to take account of the straightforward rehearing. The percentage reduction on a sliding scale thereafter would take account of the number of similarities between the appeal and hearing. Lesser degrees of repetition would reflect lesser reductions. The matter would be remitted back to be reassessed by a different Taxing Master.
Reporter: E.F
Mr. Justice Herbert on the 23rd day of July 2008
This is an appeal by the respondents against the decision of Taxing Master Flynn, dated 2 nd July, 2005. It is confined to the Solicitors General Instructions Fee of €51, 000 allowed by him following Objection taken by the solicitors for the applicant to the General Instructions Fee of €36, 000 allowed by him on taxation of their Bill of Costs. The appeal is brought pursuant to the provisions of O. 99, r. 38(3) of the Rules of the Superior Courts and pursuant to the provisions of s. 27(3) of the Courts and Court Officers Act 1995. This section provides that:-
"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 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 learned Taxing Master, in his Report to this Court, records that the Solicitor's for the Costs asserted that a considerable amount to time and effort was expended by them on and in researching, investigating and carrying out the matters following and, that this should be reflected in the amount of the General Instructions Fee allowed to them on taxation:-
(a) Taking initial instructions.
(b) Obtaining and reviewing the files of the applicant's former solicitors in relation to her application to the non-statutory Compensation Tribunal.
(c) Consulting and advising regarding the new statutory regime.
(d) Obtaining medical and test results.
(e) Commissioning medical reports, with particular reference to causation.
(f) Obtaining the advices of Counsel with regard to the grounds of appeal.
(g) Preparing and issuing the originating pleadings.
(h) Obtaining and considering the transcript of the proceedings before the Compensation Tribunal.
(i) Obtaining a vocational rehabilitation consultant's report and an actuary's report.
(j) Instructing senior counsel to advise proofs.
(k) Sourcing and binding 16, 600 folios of evidential material and furnishing same to the Chief Registrar of the High Court and the Chief State Solicitor.
(l) Structuring comprehensive briefs for senior counsel and junior counsel.
(m) Arranging and attending a consultative process with the applicant, counsel and all witnesses concerned.
(n) Compiling evidence in relation to the applicant's psychological profile.
(o) Undertaking medical literature research with Professor Eric Preston regarding the association between idiopathic thrombocytopenia and Hepatitis C., the association between auto-immune Hepatitis and Hepatitis C. and, the effect of steroids if taken over a protracted period on a compromised liver where a biopsy had already indicated signs of necrosis.
(p) Finalising preparation for the appeal hearing to the High Court and attending same on 12 th March, 2002.
The learned Taxing Master noted that the Solicitor's for the Costs claimed that the appeal to the High Court in the instant case was particularly complicated, in that the initial prognosis made at the time of the hearing of the applicant's claim before the non-statutory Hepatitis C. Compensation Tribunal, had proved to be incorrect and the applicant's condition had subsequently deteriorated.
The learned Taxing Master recorded that the Solicitor's for the Costs claimed that research and investigative work was carried out with the medical specialists, dealing with the following matters:-
(a) Whether the applicant needed a splenectomy because of platelet depletion noted in January, 1988.
(b) Whether the Compensation Tribunal had been aware that the applicant was suffering from an auto-immune disorder.
(c) The possible effects of the prescription of additional steroids in the light of the development of a further auto-immune illness.
(d) Possible medical complications arising from steroids masking other conditions, for example, appendicitis in November, 1996.
(e) Whether the treatment of the idiopathic thrombocytopenia would further damage the applicant's already compromised liver.
(f) Whether there was a causal connection between the idiopathic thrombocytopenia and the Hepatitis C.
(g) How the Compensation Tribunal dealt with the applicant's two overlapping illnesses and the fact that the steroids were causing damage to her system and were rendering the diagnosis of other problems difficult.
(h) The nature of the impact of the applicant's illness on her psychological profile and whether she was suffering mental distress by reason of her inability to care for her family, especially her three children.
(i) The impact of the applicant's medical condition on her future employment prospects.
(j) The fact that the Compensation Tribunal made its award on the basis that applicant's condition had stabilized, whereas it had in fact deteriorated subsequent to the award of the Compensation Tribunal.
(k) The review of all historical and medical records obtained in respect of the applicant.
(l) The fact that the psychological profile put before the Compensation Tribunal ante-dated the discovery that the applicant was extremely ill with Hepatitis C., in addition to auto-immune Hepatitis.
(m) The diversity to opinion between psychiatrists at the time of the hearing before the Compensation Tribunal.
(n) Whether the applicant was suffering from a "depressive-like syndrome", due to her illness and lack of energy.
(o) The perception by the Compensation Tribunal that the applicant's inability to work was caused by a psychiatric condition...
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