IELCA 1 - Isabelle Sheehan -v- David Corr Ruling 2

• Year: 2014
• Decision Date: 29 May 2014

[2014] IELCA 1

THE HIGH COURT 2009 NO. 10344 P

BETWEEN

ISABELLE SHEEHAN

(AN INFANT SUING BY HER MOTHER AND NEXT FRIEND

CATHERINE SHEEHAN) PLAINTIFF

AND

DAVID CORR DEFENDANT

RULING NO. 2 FOLLOWING HEARING OF PLAINTIFF’S OBJECTIONS.

The taxation of the Plaintiff’s costs was commenced on 11 September 2012 and continued on

the following day when the hearing was concluded.

I delivered my written ruling on 7 November 2012.

The Plaintiff’s objections are dated 27 November 2012 and relate to the sums allowed in respect

of the brief and refresher fees of Counsel and the instructions fees, all of which, it is asserted,

have been incorrectly assessed such that the allowances are inadequate and unjust. The

Objections were heard on 13 September, 3 October 2013 and 24 January 2014 when I reserved

my ruling thereon. There was a further brief hearing on 27 March 2014.

In addition, there is an objection to the amount assessed in relation to the fees of Dorset

Orthopaedics at item 202 in the bill of costs.

The Defendant’s objections dated 5 December 2012 have been withdrawn.

Lengthy written submissions dated 13 February 2013 are lodged on behalf of the Plaintiff. The

Defendant’s replying submissions are dated 9 April 2013.

At my request, the parties’ respective legal costs accountants initially attended before me, on 1

March 2013 as I was concerned at the nature of the grounds of the objection relating to the

instructions fee, at Clause 8 thereof and elucidated in the supporting submissions at p. 5 where

it is stated that “the concern regarding the Taxing Master’s apparent objective bias towards the

Defendant’s position is strengthened by the failure of the Taxing Master to advise the Plaintiff’s

Solicitor at any stage of the taxation that the Defendant was represented at the taxation by a

former colleague and business partner”.

The Plaintiff’s position as outlined to me was that the assertion of objective bias against me was

to be maintained but notwithstanding this the Plaintiff wished the objections process to be

continued. The Defendant was also anxious to continue. Apparently the Plaintiff’s Solicitor

simply wished “to recite as many objections as we had to the ruling within our objections so

that the matter may be fully ventilated at the hearing”.1

1 Transcript 1 March 2013 at pp. 10,11.

I was greatly concerned that an assertion, at its least, of objective bias, would be maintained,

bearing in mind that the Plaintiff’s concerns did not apparently emanate from my alleged failure

to provide the information alluded to in the objections. Rather, such alleged failure merely

strengthened the Plaintiff’s concerns.

The integrity of the Office of Taxing Master is of paramount importance. The public is entitled to

the assurance that taxations of costs are conducted in a fair, unbiased and transparent manner.

It seemed to me that the position adopted on behalf of the Plaintiff would have left a doubt, at

least, over the fairness of the entire process. I expressed myself as being uncomfortable with

continuing with the matter in the circumstances.

On 6 March 2013 I heard further submissions and was addressed by Mr. Boylan Solicitor for the

Plaintiff and Mr. McEvoy for the Defendant. Mr. Boylan made it clear that the Plaintiff, in the

event of this matter proceeding to a review by the High Court, would not seek to impugn the

taxation on the basis of my ruling thereon, on the ground of a prior business connection

between me and Mr. McEvoy. I adjourned the matter for consideration.

I informed the parties on 14 March 2013 that the hearing would proceed in the usual way but

indicated that while the Plaintiff had apparently undertaken not to pursue any issue asserting

objective bias on my part, I considered that I had an obligation to explain the position to the

Court. There would still seem to remain allegations that I had unfairly favoured the Defendant

over the Plaintiff and had implemented unfair procedures in the manner of consideration of the

amount claimed by way of instructions fee, in particular. In this regard, I merely note that the

Objections process is part and parcel of the process of taxation and I will in the course of this

ruling address all concerns raised on behalf of the Plaintiff.

The Plaintiff’s Objections and submissions, while lengthy, may be summarised as follows:

1. The Taxing Master failed to adequately consider and assess the work.

2. The novelty of the case should have resulted in a greater allowance.

3. The case was in the higher range of complexity in reference to the Solicitors’ work on

liability and causation.

4. There was an error in principle in having too much regard for the fact that the

Defendant did not proffer any medical reports which put causation in dispute in

circumstances where the defence denied causation.

5. There was an error in principle in the approach to arriving at the minimum reasonable

fee allowable.

6. The approach to the assessment was inconsistent and with submissions made.

7. A failure to have regard to the extra responsibility borne by the Plaintiff’s Solicitors in

the circumstances of the case.

8. An error in taking into account the high rate of Court duty as constituting an almost

unresistable incentive to settle costs without recourse to taxation in relation to the

comparators proffered by the Plaintiff and that no such issue was canvassed at the

taxation.

9. In consideration of the Plaintiff’s Solicitors’ overhead costs and in apparently allowing

lesser fees in consequence.

10. In fundamentally misunderstanding the nature of the Plaintiff’s case in believing that the

Plaintiff’s Solicitor had formed “a clear picture on liability” within two months and in

failing to have regard to the fact that liability remained in issue until shortly before the

trial.

11. In holding there was a significant degree of familiarity on the part of the Plaintiff’s

Solicitor “with all of the expert Witnesses”.

12. In taking into account the reference in the s.68 letter to an hourly rate of €250 when

the case was brought on a “no win no fee basis”.

13. In referring to the Plaintiff’s 21 comparators as “purported comparators” and in the

consideration of such comparators.

14. In making reference to the Defendant’s assertion that ‘super profits’ may have been

earned in previous cases.

15. In reference to the Judgement in Barry & Anor. -v- The National Maternity Hospital as

relating to the real rate of return issue.

16. In ‘holding’ that the work of Ms. O’Connor Solicitor, was both social and legal and that

she had acted as a therapist in many ways.

17. In underestimating the forensic and complex work done in relation to discovery obtained

from multiple sources.

18. In relying ‘almost exclusively’ on the Plaintiff’s Solicitors’ time records contrary to what

had been stated during the taxation hearing.

19. In accepting the Defendant’s breakdown of the fee ‘without considering the Plaintiff’s

submissions’.

20. In holding that the safer course to adopt was the consideration of the nature and extent

of the work as shown on the papers; and that there was no real dispute between the

parties as to the extent of work on liability or the assessment; in failing to take into

account sufficient hours worked and applying an inadequate rate per hour; in failing to

appreciate the nature of the ‘Keyhouse’ documents.

21. In not referring to a particular comparator, namely, Kate Murphy.