Irish Trust Bank Ltd v Central Bank of Ireland

Judgment Date01 January 1977
Neutral Citation1975 WJSC-HC 1231
CourtHigh Court
Date01 January 1977

1975 WJSC-HC 1231


No. 1470P/1972





PARKE J. delivered the 12th day of March 1976.


This is a motion pursuant to Order 99 Rule 38 of the Rules of the Superior Courts to review the taxation of the Bill of Costs presented by the plaintiffs pursuant to an award for costs granted at the conclusion of the hearing of the action. The plaintiffs Solicitor being dissatisfied with the allowances and disallowances on taxation carried in objections which were ruled upon on the 15th October, 1974 and the present application is for the review of the Taxing Master's rulings in respect of a number of items. All of these items relate either to the instructing of counsel or to the fees paid to counsel gave in respect of one item which is the Solicitors charge for instructions to brief.


The plaintiffs claim related to a licence to carry on business as Bankers which was granted by the defendants pursuant to provisions of the Central Bank Act 1971in respect of which the Defendant sought to impose conditions pursuant to Section 10 of that Act. The plaintiffs claimed:


1. A declaration that each of the conditions set out in the schedule to the licence and imposed by the defendants in or in respect of the plaintiffs" Bankers business is unenforceable, ultra vires the defendants, unjust and invalid.


2. A declaration that the plaintiffs are entitled to held the said licence freed and discharged from the said conditions and each of them. In addition the plaintiffs sought damages and costs.


The constitutionality of the defendants right to impose such conditions was raised in issue in the proceedings and it is clear from the Taxing Master's report that the action was of the highest importance not only to the rights of the parties but to the public and raised issues of considerable difficulty.


Thirty four items are brought into review but these fall into eight groups in respect of which separate arguments were advanced on behalf of the parties.


However, in respect of all of the items relating to counsel's fees a general proposition was advanced on behalf of the plaintiffs that I should follow and apply the principle laid down by Cannon J. in Dunne .v. O'Neill ( 1974 I.R. 180) which was cited to the Taxing Master in the course of the taxation. The Taxing Master in the course of his report and subsequently Counsel on behalf of the defendants have argued with great force that this principle and based upon a disregard or misunderstanding of a large number of previous authorities.


The principle which is stated in slightly different terms in different parts of the Judgment may I think be fairly summarised as follows. It is the duty of the Taxing Master to assess the amount which he should allow on a party and party taxation in respect of disbursements by Solicitors for Counsel's fees and that the standard which he should adopt in measuring these amounts is to ascertain what a reasonable and prudent practising Solicitor would consider proper to offer to a suitable counsel in order to obtain his services in the particular case in question. In order to do this he must not only rely upon his own experience as a Solicitor but must keep himself informed as to the current practice of Solicitors and Counsel. At page 189 the learned Judge says:


"It is no part of the function of the Taxing Master on taxation of costs, or of the Court on a review of the taxation, to examine the nature or quality of the work done by or required of Counsel or to assess, by measurement of fees, the value of Counsel's work. The sole matter with which the Taxing Master is concerned in respect of the items which are the subject matter of this application is whether to allow in whole or in part the disbursements made by the Solicitor in the course of his practice in respect of fees to counsel retained by him in an action in accordance with the rules relating to party and party taxation." After a quotation from the Judgment of Sullivan M.R. in Robb .v. Connor ( 1875 I.R. 9EQ. 376) (one of the cases referred to by the Taxing Master in the present case and Counsel for the defendants) the learned Judge continues:


"Because these items are disbursements made by a Solicitor in the course of his practice in respect of fees to Counsel retained by him on his clients behalf, the amounts of the disbursements should be assessed on the basis of what a practising Solicitor who is reasonably careful and reasonably prudent would consider a proper and reasonable fee to offer to Counsel. This standard does not involve any presumption in favour of particular fees allotted by a Solicitor to Counsel of his choice, but it does involve having due regard to the changes in what the practising Solicitor considers to be reasonably derived from his day to day and year to year experiences in the course of his practice".


This principle in challenged by the Taxing Master who devotes ten pages of his report to a review of a large number of cases and quotations from their judgments and says on pp. 20 and 21 of his report:


"I am at a loss therefore to reconcile the dicta of the Honourable Mr. Justice Cannon as contained in the judgment of the learned Judge in the hereinbefore mentioned case of Nicholas Dunne Rules of Court and the long established practice of the Taxing Masters.


Accordingly it seems to me that the overwhelming weight of authority confirms the judicial discretion which is vested in a Taxing Master and his right but not only his right but his duty to measure, settle or adjudicate upon Counsel's fees and other fees charges and disbursements appearing in a Bill of Costs for taxation".


I think it might be said that the propriety of a Taxing Master reporting to a Judge of the High Court that another Judge of that Court was wrong in law is very much open to question. The situation would have been even more anomalous had this case, as it might very well have done, come on for hearing before Cannon J. Be that as it may I have no doubt that this portion of the Taxing Master's report provided a useful and well researched brief for Counsel on behalf of the defendants.


Mr. O'Neill on behalf of the defendants urged me that I should not follow or apply the principles quoted from the judgment of Cannon J. I fully accept that there are occasions in which the principle of stare decisis may be departed from but I consider that these are extremely rare. A Court may depart from a decision of a Court of equal jurisdiction if it appears that such a decision was given in a case in which either insufficient authority was cited or incorrect submissions advanced or in which the nature and wording of the judgment itself reveals that the Judge disregarded or misunderstood an important element in the case or the arguments submitted to him or the authority cited or in some other way departed from the proper standard to be adopted in judicial determination. It is clear that none of these elements can be detected in Dunne .v. O'Neill or the judgment therein delivered. Mr. O'Neill does not in fact contend any such thing but his argument rests solely on the fact that the decision is contrary to previous authorities and that I am therefore not obliged to follow it. Whatever may be the case in Courts of final appellate jurisdiction a Court of first instance should be very slow to act on such a proposition unless the arguments in favour of it were coercive. If a decision of a Court of first instance is to be challenged I consider that the appellate Court is the proper tribunal to declare the law unless the decision in question manifestly displays some one or more of the infirmities to which I have referred. The principle of stare decisis is one of great importance to our law and few things can be more harmful to the proper administration of justice, which requires that as far as possible lay men may be able to receive correct professional advice than the continual existence of inconsistent decisions of Courts of equal jurisdiction. The present case affords an interesting example of what ought to be avoided. Mr. Mackey appeared for the applicants in Dunne .v. O'Neill. Not only are his arguments set out in detail in the judgment but they are adopted and made part of the ratio decidendi in a manner in which counsel is seldom gratified to experience. Mr. Mackey appeared for the plaintiffs in the present case and it would be an ironic comment on the state of the law if counsel could find his arguments adopted and applied in one Court and yet be told in another Court of equal jurisdiction that they were fundamentally wrong and inconsistent with the authorities.


I find nothing to convince me that the Judgment of Cannon J. shows such disregard or inconsistency with previous authorities to justify me in departing from it. Although the report is scanty in information as to the authorities cited by Counsel it is clear from a perusal of the Judgment that almost all of the cases cited to me in argument and set out in the Taxing Master's report were considered by the learned Judge. Indeed many of the passages relied upon by Mr. O'Neill and cited in the Taxing Master's report are also cited and relied upon by the learned Judge. I therefore take the view that the only grounds upon which I could properly be asked to descend from or fail to follow Dunne .v. O'Neill have not been established to my satisfaction.


I would like, however, to make it clear that I have not formed this view merely as a reluctant adherent to the doctrine of stare decisis. My decision is not in the words of Bowen L.J. " a sacrifice made upon the altar of authority": Montague .v. Earl of Sandwich 32 Ch.D. 525 at p. 549. I think that the argument on behalf of the defendants suffers from two disabilities....

To continue reading

Request your trial
51 cases

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT