GASPARI v Iarnród Éireann

• Jurisdiction: Ireland
• Judge: Mr. Justice Kinlen
• Judgment Date: 01 January 1997
• Neutral Citation: [1996] IEHC 8
• Docket Number: No. 14997 p/1989
• Court: High Court
• Date: 01 January 1997

GASPARI v. IARNROD EIREANN

BETWEEN

GIOVANNI GASPARI

PLAINTIFF

AND

IARNROD EIREANN - IRISH RAIL

FIRST NAMED DEFENDANT

AND

MICHAEL J DISKIN

SECOND NAMED DEFENDANT

AND

PATRICK DISKIN

THIRD NAMED DEFENDANT

[1996] IEHC 8

No. 14997 p/1989

THE HIGH COURT

Synopsis:

PRACTICE

Costs

Taxation - Review - Solicitor - Fees - Instructions - Plaintiff passenger in train derailed by collision with cattle - Judgment for £16,000 damages only recovered by plaintiff - Test case - Judgment recovered against railway company and against cattle owner - Action against landowner dismissed - Plaintiff's solicitor's instructions fee of £150,000 reduced to £90,000 on taxation - Landowner" solicitor's instructions fee of £118,500 reduced to £70,000 on taxation - Insufficient disparity between instruction fees allowed on taxation - Taxing master incorrect in treating action as one involving mere assessment of damages - Plaintiff's solicitor's instruction fee increased to £120,000 on review - (1989/14997 P - Kinlen J. - 30/7/96) - [1997] 1 ILRM 207

|Gaspari v. Iarnrod Eireann|

Citations:

SMITH V TUNNEY 1993 1 IR 451

DUNNE V O'NEILL 1974 IR 180

RSC O.99 r22

CROTTY V IRELAND 1990 1 ILRM 617

CLARKE V HEARTY UNREP BARR 2.12.92

GALLAGHER SHATTER & CO, STATE V DEVALERA 1991 2 IR 198

RSC O.99 r38(3)

BARRY V SPATE 1904 2 IR 478

AG V SIMPSON 1963 IR 329

SIMPSONS MOTOR SALES (LONDON) LTD V HENDON CORPORATION (NO 2) 1965 1 WLR 112

IRISH TRUST BANK LTD V CENTRAL BANK OF IRELAND 1976–1977 ILRM 50

KELLY V BREEN 1978 ILRM 63

RSC O.99 r37(18)

1 Mr. Justice Kinlen delivered on the 30th day of July, 1996.

2 The Plaintiff was a passenger on a train owned and run by larnrod Eireann. It was travelling between Dublin and Knock in the County of Mayo. Cattle were travelling across the railway track. The land on both sides of the track was owned by the second named Defendant, Michael J. Diskin. The cattle were owned by the third named Defendant, Patrick Diskin. The train and the cattle were in collision. The Plaintiff instituted proceedings against the first named Defendant only by a plenary summons dated the 7th November, 1989. A Statement of Claim between the same parties was delivered on the 18th of December, 1989. The Defence, delivered on the 15th June, 1990 was the normal traverse with allegations against Michael Diskin and Patrick Diskin. Notice of trial was served on the 26th July, 1990. There were a number of people injured in the collision between the train and the cattle. It looked as if the case in which Veronica McGovern was the Plaintiff would be first to hearing as she had got discovery. The Plaintiff in the present case had brought a motion for discovery on the

3 25th June, 1992 and got a limited order of discovery on that date which order was perfected on the 14th of August, 1992.

4 On the 23rd September, 1992 application was made by larnrod Eireann to join the two Diskins and for directions. On that date the Diskins were joined as co-Defendants. The amended Statement of Claim was delivered on the 3rd November, 1992 and an Affidavit of Discovery was sworn on the 24th November, 1992. It was agreed to give the same discovery as had already been given in the case of Veronica McGovern. There were the usual Notice for Particulars and replies and Notices claiming Indemnity and Contributions. The second and third named Defendants initially entered a joint defence, dated the 4th December, 1992. However, on the 12th January, 1993, there were separate Notices served on behalf of each of the Diskins to claim Indemnity and Contribution. They each filed separate answers to a Notice for Particulars. The Action came before Johnson J. on the 12th January, 1993, and was at hearing for 12 days concluding on the 29th January, 1993.

5 The second and third named Defendants were represented separately.

6 The Judgment was reserved. It was delivered on the 26th February, 1993. The Court found the first and third named Defendants negligent and proportioned liability 30% on the Railway Company and 70% on Patrick Diskin and awarded damages in the sum of £16,000. The case was adjourned to the 23rd April, 1993 to draw up the Order. On that date the Court ordered that the Plaintiff do recover from the first and third named Defendants the sum of £16,000 together with the costs when taxed and such costs to include the costs of this stay. It was further ordered:-

"that the Plaintiff's claim against the second named defendant be dismissed and that the Plaintiff do pay to the second Defendant the cost of these proceedings including the cost of this stay when taxed.

And it was further ordered that the Plaintiff do recover against the first Defendant such costs as he is liable to pay and does pay to the second Defendant on foot hereof.

And the Court be informed by Counsel for the First Defendant that the sum of £16,000 has been pledged to the Plaintiff.

It is ordered that execution on foot of the said Judgment (as to costs only) be stayed for a period of 21 days from the date of perfection hereof and in the event of the first Defendant serving Notice of Appeal within that period and duly entering same that execution be further stayed until the final determination of such appeal — the Defendants to pay to the Plaintiff interest on such costs as shall be payable on foot hereof such interest to date from the date hereof."

7 The matter again came before Johnston J. on the 25th June, 1993 when the Court ordered that:-

"the said Order dated the 23rd April, 1993 be amended as follows: that the costs awarded to the second Defendant be limited to such costs as are attributed directly to separate representation."

8 The first named Defendant appealed to the Supreme Court the whole of the Judgment of the 26th February, 1993 and the Order of the 23rd April, 1993 as amended by the Order of the 25th June, 1993. The matter came before the Supreme Court. The first named Defendant appealed for an Order setting the High Court Judgment aside and directing a new trial and the third named Defendant appealed against as much of the High Court Order as made him liable for damages to the extent of 70%. The matter was argued before the Supreme Court on the 16th, 17th and 18th November, 1993 and Judgment was given on the 15th December, 1993. The Supreme Court heard Counsel for the respective Appellants and Counsel for the Plaintiff and not requiring to hear submissions from Counsel for the second named Defendant, ordered that the appeals be dismissed and ordered that the said Judgment and Order of the High Court be varied by adding thereto the following provisions:-

9 2 "(1) that the first named Defendant do recover against the third named Defendant's contribution amounting to 70% of the damages and costs which he is liable to pay and does pay to the Plaintiff in this Action.

10 (2) that the third named Defendant do recover from the first named Defendant contribution amounting to 30% of the damages and costs which he is liable to pay and does pay to the Plaintiff in this Action and that as so varied the said Judgment and the Order be affirmed and it is ordered that the Plaintiff do recover from the first and third named Defendants the cost of the said Appeals when taxed and ascertained and that the second named Defendant do recover from the first named Defendant the costs of that Defendant's appeal when taxed and ascertained".

11 The Court also gave liberty to apply in the High Court and if necessary to the Supreme Court in regard to any question arising in relation to the second named Defendant's costs of the proceedings in the High Court.

12 The matter came before Johnson J. again on the 20th December, 1993. The Court deleted from it's Order of the 25th June, 1993 "where such costs as are attributed directly to separate representations" by the substitution therefore of the words "such costs as are attributable solely to the separate representation of Michael Diskin".

13 The matter came before this Court by way of three motions to review taxation of costs by Taxing Master Flynn. There are two motions brought at the behest of Irish Rail who are the first named Defendants in the principal action. These motions are directed against the Plaintiff and against the second named Defendant, Michael J. Diskin and the Plaintiff brought a Motion against larnrod Eireann in relation to one issue only, namely, the Solicitors Instructions Fee for the Plaintiff.

14 The learned Taxing Master proceeded to tax and hear objections in this matter. The objections were heard on the 27th and 30th June, 1995. The Taxing Master issued his report in July of 1995.

15 The McGovern case was first on the list. It was set down for trial in Dundalk but since it would take at least two weeks, it was transferred to Dublin sometime around the end of 1992. Apparently, the Solicitors involved for the various Plaintiff's did then get behind the present case as the test case. It was the contention of Irish Rail that all the ground work that was necessary for the running of the test case was done in the McGovern case which was ready to go on until it was adjourned to Dublin and the Gaspari case then came ahead of it in the list.

16 The Plaintiff's costs were briefly as follows:-

17 Senior Counsel £20,000. Taxation was reduced to £18,900 but on objection was restored to £20,000 and £3,000 for refresher was allowed on taxation and again on objection. Junior Counsel fees would of course be the appropriate two-thirds of that being allowed to Senior Counsel. The Plaintiff's Solicitors" instructions fee claimed at £150,000 reduced on taxation to £90,000 and maintained on objection at £90,000. The first named Defendant says that Senior Counsel's fee should be £7,857, refreshers of £1,575, the Solicitors Instruction Fee of £44,250. The first named Defendant was aware of claims up to 191 "in the pipe line". There were undoubtedly very...