Jackie Cronin (née O'Connor) v Astra Business Systems Ltd (No. 2)

• Jurisdiction: Ireland
• Judge: McGuinness J.
• Judgment Date: 14 May 2004
• Neutral Citation: [2004] IESC 30
• Docket Number: [S.C. No. 324 of 2003]
• Court: Supreme Court
• Date: 14 May 2004

[2004] IESC 30

THE SUPREME COURT

McGuinness J.

Fennelly J.

McCracken J.

No. 324/03

CRONIN (NEE O'CONNOR) v. ASTRA BUSINESS SYSTEMS LTD

BETWEEN

JACKIE CRONIN (NEE O'CONNOR)

PLAINTIFF/RESPONDENT

AND

ASTRA BUSINESS SYSTEMS LIMITED

DEFENDANT/APPELLANT

Citations:

RSC O.22 r4(3)

RSC O.99 r38(3)

RSC O.99 r37(18)

COURTS & COURT OFFICERS ACT 1995 S27(3)

COURTS ACT 1981 S17(1)

COURTS ACT 1991 S14

COURTS ACT 1981 S17

RSC O.99 r10(1)

SOLOMON V MULLINER 1901 1 QB 76

SMYTH V TUNNEY (NO 2) 1999 1 ILRM 211

BLOOMER & ORS V INCORPORATED LAW SOCIETY OF IRELAND (NO 2) 2000 1 IR 383

HOPKINS V REES & KIRBY LTD 1959 2 AER 352

Synopsis:

- [2004] 3 IR 476

The plaintiff who had instituted proceedings in the High Court for damages for personal injuries sustained by her accepted a lodgment, which fell within the jurisdiction of the Circuit Court. The defendant appealed from a decision of Butler J. in the High Court affirming the decision of the Taxing Master that the plaintiff was entitled to have her costs taxed on the High Court scale notwithstanding the amount of the lodgment figure.

Held by the Supreme Court (McGuinness, Fennelly, McCracken JJ) in dismissing the appeal: That the learned trial judge was correct in his conclusion that he could see no basis for determining that it was the intention of the Oireachtas that a plaintiff who institutes proceedings in the High Court and accepts a sum lodged that is within the jurisdiction of the Circuit Court should not be entitled to have her costs taxed on a High Court basis. The defendant failed to discharge the onus of showing that the Taxing Master erred in principle and that his decision was unjust.

Reporter: L.O'S.

Notice: The page breaks of this judgment may not correspond with the hard copy. These will be inserted later.

1 14th day of May 2004 byMcGuinness J.

McGuinness J.

2 The plaintiff was injured in a road traffic accident on the 14 ^th March 1997. She commenced proceedings in the High Court by plenary summons issued on the 31 ^st August 1999 seeking damages for her injuries. On 10 ^th October 2000 the defendant (who is the appellant before this court) made a lodgment of IR£21,010 with its defence. By a Notice of Acceptance dated 27 ^th November 2000 the plaintiff accepted the lodgment. The amount of the lodgment accepted by the plaintiff fell within the jurisdiction of the Circuit Court.

3 Under the provisions of Order 22 Rule 4 (3) of the Rules of the Superior Courts 1986 the plaintiff was entitled to tax her costs up to the date of the lodgment. The issue then arose as to whether the plaintiff was entitled to costs on the High Court scale or on the Circuit Court scale. In his ruling dated 22 ^nd March 2002 the Taxing Master found that the plaintiff was entitled to have her costs taxed on the High Court scale notwithstanding the amount of the lodgment figure. Objections thereto were then filed by the defendant. On 30 ^th July 2002 the Taxing Master, having considered the written submissions and oral arguments of the parties, affirmed the amounts ruled at the taxation and allowed High Court costs. The Taxing Master certified the plaintiff's costs in the sum of IR£6,455.09 (€8,196.27).

4 In the light of the Taxing Master's decision the defendant issued a motion to review the taxation of the plaintiff's costs pursuant to Order 99, Rule 38(3) of the Rules of the Superior Courts. The motion was heard before Butler J. on 8 ^th May 2003. Butler J. delivered his reserved judgment on 20 ^th June 2003 affirming the Taxing Master's rulings and decision. The defendant then appealed to this court.

5 The defendant was late in filing its appeal to this court and applied for leave to extend the time for appeal. This application came on for hearing before the court on 10 ^th October 2003. A consent order was made extending the time for appeal. It was a condition of that consent order that the defendant would agree to pay to the plaintiff the costs incurred by her in the review of the Taxing Master's decision to date and also the costs of the appeal to this court irrespective of its outcome. To some extent, therefore, this appeal is a moot. However the defendant/appellant submits that the issue which arises (namely whether the High Court or Circuit Court costs should be allowed) is of some importance in the realm of practice and procedure. In the event the appeal was fully argued before this court.

Statutory Provisions and Rules of the Superior Courts

6 A number of provisions made both by statute and by the Rules of the Superior Courts are relevant to the issue arising in this appeal and it seems convenient to set these out at this point. In regard to taxation of costs in general Order 99 Rule 37(18) provides:

"On every taxation the Taxing Master shall allow all such costs, charges and expenses as shall appear to him to have been necessary or proper for the attainment of justice or for enforcing or defending the rights of any party, but, save as against the party who incurred the same, no costs shall be allowed which appear to the Taxing Master to have been incurred or increased through over-caution, negligence or mistake, or by payment of special fees to counsel or special charges or expenses to witnesses or other persons or by other unusual expenses."

7 Order 99 Rule 38(3) provides for the review of the decisions of the Taxing Master by the High Court. Where relevant it provides as follows:-

"Any party who is dissatisfied with the decision of the Taxing Master as to any items which have been objected to as aforesaid or with the amount thereof, may within twenty one days from the date of the determination of the hearing of the objections or such other time as the court or the Taxing Master may allow, apply to the court for an order to review the taxation as to the same items and the court may thereupon make such order as may seem just ..."

8 The role of the court in reviewing taxation is governed by section 27(3) of the Courts and Courts Officers Act 1995which provides as follows:-

"The High Court may review a decision of a Taxing Master of the High Court and the Circuit Court may review a decision of a County Registrar exercising the powers of a Taxing Master of the High Court made in the exercise of his or her powers under this section, to allow or disallow any costs, charges, fees or expenses provided only that the High Court is satisfied that the Taxing Master, or the Circuit Court is satisfied that the County Registrar, has erred as to amount of the allowance or disallowance so that the decision of the Taxing Master or the County Registrar is unjust."

9 The level of costs which may be recoverable by a plaintiff after a trial in certain circumstances is limited in accordance with the amount of damages awarded. Section 17(1) of the Courts Act 1981 (as amended by section 14 of the Courts Act 1991) provides:

"Where an order is made by a court in favour of the plaintiff or applicant in any proceedings...and the court is not the lowest court having jurisdiction to make an order granting the relief the subject of the order, the plaintiff shall not be entitled to recover more costs than he would have been entitled to recover if the proceedings had been commenced and determined in the said lowest court."

The Decision of the High Court

10 The defendant's application for a review of taxation of costs came on for hearing before Butler J., who delivered a reserved judgment on 20 ^th June 2003. In his judgment Butler J. laid stress on the fact that section 17(1) dealt solely with the situation where an Order was made by a court in favour of a plaintiff. No relevant statutory provision dealt with the situation where the plaintiff accepted a sum lodged in court.

11 At page 4 of his judgment the learned judge concluded:

"In the absence of precise statutory provisions I can see no basis for determining that it was the intention of the Oireachtas that a plaintiff, who institutes proceedings in the High Court and accepts a sum lodged that is within the jurisdiction of the Circuit Court should not be entitled to have her costs taxed on a High Court basis. In the absence of any contrary evidence it is fair to assume that the plaintiff, through her solicitors and counsel, did find it necessary and proper to proceed in the High Court. There are very many instances, in addition to the present case, where this could occur. For example, a plaintiff could be injured in an accident, receive a bad prognosis for medical advisors and that prognosis could ultimately change. Such a plaintiff must have every right to accept a lodgment without the penalty of having to pay the...