IELCA 5 - Caroline Jordan -v- Declan Buckley & Ors. Ruling 2

• Year: 2013
• Decision Date: 12 July 2013

THE HIGH COURT [2013] IELCA 5

2011 NO. 4049 P

BETWEEN CAROLINE JORDAN PLAINTIFF

AND

DECLAN BUCKLEY, TREVOR O’CALLAGHAN THE MIDLAND REGIONAL HOSPITAL

MULLINGAR AND HSE DUBLIN MID LEINSTER REGION DEFENDANTS

RULING NO. 2 FOLLOWING HEARING OF PLAINTIFF’S OBJECTIONS

The Plaintiff’s bill of costs herein was listed for taxation before me on 19 December 2012

pursuant to Order of 4 October 2012, when, as explained in my ruling no. 1 dated 8 February

2013, the matter was discussed and adjourned to 15 January 2013. On that date the taxation

was concluded subject to ruling in relation to the instructions fee and concerning an issue which

had arisen as to whether the brief fees claimed in the bill of costs had been prematurely

incurred.

I duly dealt with both aspects in my said ruling and the Plaintiff being dissatisfied with my

decision to disallow, as between party and party, the costs attendant to issuing briefs to

Counsel for the trial of the action and instead to allow only the costs of briefing Senior Counsel

for the purpose of conducting settlement negotiations, carried in objections dated 22 February

2013. In addition objection was raised concerning my disallowance of the fees of Segrave Daly

& Lynch Ltd. Consultant Actuaries.

The Brief Fees

The matter at issue is not quite correctly identified in the Plaintiff’s written submissions which

were filed on 22 February 2013, as follows:

“Whether the Taxing Master was correct in determining that the briefs to Senior

and Junior Counsel in respect of the above matter were prematurely delivered and

whether, following on from that finding, the Taxing Master was correct in assessing

a brief fee in respect of one Counsel only.”

In fact, I did not allow a brief fee in respect of one Counsel. I allowed a negotiation fee in the

sum of €7500.

In essence it is asserted on behalf of the Plaintiff that I was in error in my application of the

provisions of Order 99 Rule 37(25) RSC 1986 and in the application of the principles enunciated

in McGrory v Express Newspapers plc & Anor.1 Further and in accordance with the decision of

Cordner v Guedalla 29 LR Ir 81, while the brief may be held to have been prematurely issued if

a case is settled before Notice of Trial, such finding is largely dependent upon circumstances

and reliance is placed on the following extract from a publication entitled “Taxation of Costs”2

“Prematurity is not conclusively dependent upon the procedural steps within a case but

rather with the reasonable and proper conduct of a case.”

It is asserted that the Taxing Master was incorrect in “surmising that there were material

matters outstanding”. In this regard the situation as found by the Court in McGrory is

distinguished from the situation herein. Further that a principle arrived at in McGrory was that

it was necessary that there be no ulterior motive on the part of the Plaintiff’s solicitor in issuing

the briefs to Counsel at the relevant time. It is asserted that there was no excessive caution on

the part of the Plaintiff’s solicitor and that in issuing the briefs to Counsel the said solicitor was

“simply taking the final step in advancing the case to hearing in circumstances where all the

work had, in reality, been done.”

It is further asserted that the principles to be applied in the taxation of costs as between party

and party are the same as those applied in the McGrory decision irrespective of the fact that

McGrory was taxed on the solicitor and client basis.

1??Unreported,??High??Court,??Murphy??J.,??21??July??1995.

2 Flynn & Halpin, Blackhall Publishing, 1999 at p. 536.