IELCA 7 - Ita Colgan -v- Andrew Purcell Ruling 2

• Year: 2013
• Decision Date: 19 February 2013

[2013] IELCA 7

THE HIGH COURT 2009 NO. 4671 P

BETWEEN

ITA COLGAN PLAINTIFF

AND

ANDREW PURCELL DEFENDANT

RULING NO. 2 FOLLOWING HEARING OF PLAINTIFF’S OBJECTIONS

ON 17 JANUARY 2013.

The Instructions Fee.

This fee was claimed in the sum of €240,000 and reduced for the reasons outlined in my ruling

dated 31 July 2012, to the sum of €150,000.

The Plaintiff’s grounds of objection are threefold as follows:

(i) that the allowance is insufficient to cover the extent of the work carried out by the

Plaintiff’s solicitor;

(ii) that the Taxing Master erred in failing to apply properly the principles governing the

assessment of the solicitor’s instructions fee;

(iii) that the Taxing Master placed incorrect emphasis on the Defendant’s comparator case of

McGrath v Stone Developments 2004 No. 5627 P when arriving at his valuation of the

work done in the case.

The Plaintiff’s solicitors also filed lengthy submissions accompanied by 31 appendices in support

of the objections.

The Defendant’s solicitors have filed lengthy replying submissions. I have carefully considered

all submissions and I also heard the oral submissions of the parties at the hearing of said

objections on 17 January 2013.

The Plaintiff’s submissions in relation to the instructions fee and the other items to which

objections have also been carried in namely the fees of Ms. Noreen Roche Nursing Care

Consultant and Tony O’Keeffe & Partners Consulting Engineers (the objections in relation to the

expenses of Garda Sexton and Garda Fallon were not pursued at the hearing), are prefaced at

pp 1 to 7 by a lengthy description of the background to the proceedings and the issues which

arose therein.

At pp 7 to 34 the submissions address the instructions fee solely. Under the heading “What is

an instructions fee?” the Plaintiff outlines at pp 7 to 17 the relevant Statutory and case law

which governs the taxation of costs generally as between party and party.

Having outlined the law it is asserted under the heading “Taxing Master’s written ruling”, that

“the Taxing Master has erred in carrying out his judicial function as he has placed too much

emphasis on some matters while not placing appropriate emphasis on others resulting in a

decision that is ultimately an injustice to the Plaintiff who, as a result of the accident that

caused the proceedings to be necessary, has been rendered one of the most vulnerable people

in society due to her lifelong injury and compromised earning capacity”. This sentence, I

believe is illustrative of an apparent misapprehension by the Plaintiff’s representatives of the

law relating to the role and function of a Taxing Master in the assessment of an instructions fee.

For the purpose of assessing an instructions fee the primary obligation of a Taxing Master

pursuant to the provisions of sub sections (1) and (2) of Section 27 of the Courts and Court

Officers Act, 1995 is to ascertain the nature and extent of the work carried out by the solicitor

and which may properly be taken into account in consideration of the instructions fee charged in

a bill of costs. This was essentially the position prior to the enactment of the 1995 Act (see

Best v Wellcome [1996] 3 IR 378 in which Barron J. distilled the essence of Order 99 Rule 37

(22) (ii) into three elements:

(a) Any special expertise of the solicitor;

(b) The amount of work done;

(c) The degree of responsibility borne.

There has been a good deal of judicial consideration of the law subsequent to the passing of the

said Act, notably CD v Minister for Health [2008] IEHC 299; Cafolla v Kilkenny & Ors. [2010]

IEHC 24 and Bourbon v Ward & Ors. [2012] IEHC 30 in which the Court has set out the matters

which must be considered by a Taxing Master before arriving at a conclusion on an instructions

fee. .

It has not been my practice in providing rulings following the taxation of costs to deliver a

resume of the general law on the subject. I do not believe that this is necessary given that the

parties attending before me are, generally speaking fully au fait with the law and of equal

importance, having regard to the views expressed by Herbert J. in CD v Min. for Health &

Children & Anor. (at internal p. 17) which counsels against the provision by a Taxing Master of a

report to the Court which includes “lengthy dissertation or legal discourse and ‘citing’ and

analysing numerous legal authorities”.

Broadly put, I believe the Taxing Master’s priorities in assessing an instructions fee should be

addressed to ascertaining:

a) The nature and extent of the work under the following sub headings:

(i) the actual work carried out;

(ii) the skills applied;

(iii) the time taken.