O'Driscoll (A Minor) v Hurley

JurisdictionIreland
JudgeMs. Justice Baker
Judgment Date04 May 2018
Neutral Citation[2018] IEHC 264
Docket Number[2010 No. 10916 P]
CourtHigh Court
Date04 May 2018
BETWEEN
MICHAEL O'DRISCOLL
(A MINOR SUING BY HIS MOTHER AND NEXT FRIEND, BREDA O'DRISCOLL)
PLAINTIFF
AND
MICHAEL HURLEY
AND
HEALTH SERVICE EXECUTIVE
DEFENDANTS

[2018] IEHC 264

[2010 No. 10916 P]

THE HIGH COURT

Taxation – Practice & Procedures – O. 99, r. 38(3) of the Rules of the Superior Courts – S. 27(3) of the Courts and Courts Officers Act 1995 – Taxation of solicitor's costs

Facts: The plaintiffs sought review of the decision of the first named defendant ('Taxing Master') on the issue of the allowance that the Taxing Master had made for the solicitor's instructions fee. The plaintiffs argued that the Taxing Master had attached insufficient weight to the detailed chronology of work and time estimates prepared by the plaintiffs' solicitor.

Ms. Justice Baker held that the Taxing Master had erred in fact and in law and that the determination of the solicitors' instructions fee by the Taxing Master was unjust. The Court held that it would hear counsel on whether the Court should measure the costs. The Court found that the plaintiffs' solicitor was a cost accountant with experience and skill and his estimates should have been regarded as the true estimates by the Taxing Master.

JUDGMENT of Ms. Justice Baker delivered on the 4th day of May, 2018
1

This judgment is given in a review of the decision of Taxing Master Mulcahy on the taxation of the plaintiff's costs and deals solely with the challenge to the allowance she made for the solicitor's instruction fee, claimed at €145,000 and allowed at €57,400.

2

After a four-day hearing of the medical negligence action, and judgment having been reserved, on 28 February 2012 O'Neill J. awarded the plaintiff €50,000 together with his costs to be taxed in default of agreement. Liability was conceded three months before the trial, although causation remained in issue. A total of eight witnesses were heard, including six expert witnesses. An application pursuant to s. 63 of the Civil Liability Act 1961 had been brought in regard to a tender offer and was rejected.

3

Some difficulties in examining and cross examining the plaintiff were acknowledged by the trial judge, who described the situation as 'very difficult and unusual'.

4

The motion for review brought on 21 October 2015 came on for hearing before me on 23 June 2016, but after a two-day hearing was adjourned to await the decision of the Supreme Court in the appeal from the decision of the Court of Appeal in Sheehan (a Minor) v. Corr [2016] IECA 168.

5

The Supreme Court delivered its judgment on 15 June 2017, Sheehan v. Corr [2017] IESC 44, [2017] 2 ILRM 454 and supplemental written submissions were furnished and addressed orally.

Sequence of hearings before the Taxing Master
6

Taxing Master Mulcahy delivered her initial ruling on 16 May 2014 but did not provide a written statement of her reasons. The solicitor for the plaintiff, Mr. O'Sullivan, made objections to the ruling pursuant to O. 99, r. 38(1) of the Rules of the Superior Courts ('RSC'), and thereafter, submissions were delivered by the plaintiff and the defendants.

7

The objections hearing took place before Taxing Master Mulcahy on 23 January 2015.

8

The solicitor for the plaintiff did not maintain a contemporaneous record of the time he actually spent on the file. For the purpose of the taxation of his instruction fee his cost accountant, Mr. Stephen Fitzpatrick, made an estimate of time spent from his detailed analysis of 78 principal activities in the litigation between 2006 and 2010, and a further 101 from 22 December 2011 to 26 July 2012. It is clear that Mr. Fitzpatrick used median figures in respect of certain tasks such as letters, telephone calls, etc. He did not consult with Mr. O'Sullivan for the purpose of the exercise.

9

An issue arose in the course of that hearing regarding the methodology in the calculation of time records and it was agreed that Mr. Fitzpatrick would provide a compilation of time records. He produced eleven folders from which he made estimates of time spent and gave evidence before the Taxing Master on 19 June 2015 and was cross examined.

10

The hearing of the taxation of the plaintiff's costs took five days in total, commencing on 29 October 2013 and ending on 19 June 2015. Taxing Master Mulcahy dismissed all of the objections in her ruling on 12 October 2015 (the 'final ruling').

11

After a hearing and following oral evidence from Mr. Fitzpatrick, Taxing Master Mulcahy made the following final determination:

'Having reviewed the time estimates in the light of the evidence furnished by Mr. Fitzpatrick in conjunction with a further examination of the solicitor's files, I remain of the view that the time estimated by Mr. Fitzpatrick having been spent by the Solicitor is arbitrary and not based on the actual work done by the Solicitor. It is not possible to relate the time estimated by Mr. Fitzpatrick to have been spent by the Solicitor with the work that was necessary to be done in the proceedings and in my view it would not be safe or fair to the Defendant paying party to place reliance on the time estimates prepared by Mr. Fitzpatrick.'

12

Taxing Master Mulcahy then made her ruling on the hourly rate proposed by the solicitor for the plaintiff at €400:

'The work done by the Solicitor in the proceedings was with varying nature, including some work of an administrative and a mundane nature, and in my view no single rate would be applicable to all the work undertaken by the Solicitor. Quite apart from that, the plaintiff did not engage the Solicitor for the Costs to undertake work on her behalf on the basis that the time spent by him at the rate of €400 per hour, or indeed any rate, and it is not appropriate that the fees to be allowed to the Solicitor would be calculated on that basis'.

13

In her conclusion, Taxing Master Mulcahy expressed the view that there was 'an over reliance on time' in the bill of costs and in submissions made on behalf of the solicitor for the plaintiff:

'The overriding basis on which the Solicitor's General Instruction Fee is to be assessed is the nature and extent of the work done by the Solicitor on behalf of the Plaintiff in the proceedings. In this taxation the assessment carried out is of such work as was reasonable and necessary to enforce the rights of the Plaintiff and for the attainment of justice so as to be recoverable as between party and party'.

14

For those stated reasons, she refused to allow the amount of €145,000 in respect of the general instruction fee and allowed €57,400.

The legal basis for review
15

The review is brought pursuant to O. 99, r. 38(3) RSC and s. 27(3) of the Courts and Courts Officers Act 1995 ('the 1995 Act') 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 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 or the County Registrar is unjust'.

16

Section 27 of the 1995 Act has the effect of constituting the Taxing Master a specialist tribunal in respect of whose decision the court should not interfere save by way of review, and when it is determined that the result is unjust. That a result be unjust is more than a requirement that the person claiming costs achieves less that he or she submitted, and injustice must be tested in the context of an assessment of the nature of the litigation, the amount of expertise engaged, and all of the other factors that might be relevant in the case in issue.

17

The test to be applied on review is well established. Ryan J. in Cafolla v. Kilkenny & Ors [2010] IEHC 24, [2010] 2 ILRM 207, set out the limits of the review:

'In order to succeed, the defendants have to establish that the Taxing Master erred as to the amount of one or more of the [...] allowances so that his decision was unjust'.

18

The burden on a party seeking to challenge a ruling of the Taxing Master is heavy and, as put by Hedigan J. in Revenue Commissioners v. Wen-Plast (Research and Development) Ltd [2009] IEHC 453, at para. 24, the court 'will be more reticent to interfere' than might have been the case before the changes effected by the 1995 Act.

19

Geoghegan J. in Bloomer v. Incorporated Law Society of Ireland (No. 2) [1999] IEHC 260 [2001] IR 383, at p. 387 described in some detail the exercise of the review jurisdiction as follows:

'In considering whether the taxing master erred, I must see whether in arriving at his decision he had regard or excessive regard to some factor which he either should not have had any regard to or to which he should have had much less regard. I then have to consider whether there was some significant factor to which the taxing master ought to have had regard and to which he either had no regard at all or insufficient regard. Those are examples of errors of principle in the consideration of the facts but of course the court must also consider whether the taxing master has fallen into error in either law or jurisdiction. If this court finds that the taxing master has erred in the sense described, this court then has to address the second question which is whether the taxation was unjust. In relation to any given item in the taxation which is in controversy, the justice or injustice of the decision will be determined by the amount. If after falling into error, the taxing master in fact arrives at the correct figures or at figures within a range which it might have reasonably have been open to him to have arrived at, the court should not interfere. The decision may not be exactly the same as the decision which the court would have made but it cannot be described as an unjust decision'.

20

Kearns J. in Superquinn v. Bray UDC...

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