John Buckley v Declan O'Neill (Taxing Master)
| Jurisdiction | Ireland |
| Judge | Mr Justice Maurice Collins |
| Judgment Date | 24 November 2023 |
| Neutral Citation | [2023] IECA 288 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Court of Appeal Record No 2019/29 |
and
[2023] IECA 288
Collins J.
Haughton J.
Pilkington J.
Court of Appeal Record No 2019/29
THE COURT OF APPEAL
Civil
Review of taxation – Jurisdiction – Exclusion of evidence – Appellant seeking a review of a taxation conducted by the respondent – Whether the respondent was entitled to proceed to tax additional bills
Facts: The appellant, Mr Buckley, appealed to the Court of Appeal from an order of the High Court (Binchy J) made on 5 December 2018 (perfected on 8 January 2019) whereby, for the reasons set out in his judgment of 9 November 2018 ([2018] IEHC 717), the Judge refused the appellant’s application for a review of a taxation conducted by the respondent, Mr O’Neill (the Taxing Master) relating to work undertaken by the appellant as solicitor on behalf of Mr Doyle. In his written and oral submissions, the appellant focused on: (1) the jurisdiction of the Taxing Master to tax the additional bills and what he contended was the failure of the Judge to address that issue properly; (2) the consequences which he said followed from the fact that the disputed bills were solicitor and own client bills which had been agreed by Mr Doyle, in terms of excluding those bills from taxation and/or triggering the provisions of Order 99, Rule 11(1) and (3) of the Rules of the Superior Courts (RSC); and (3) his complaint about the exclusion of evidence on which he wished to rely in the High Court and which, he said, ought to have been before the Court to enable it to properly carry out its review function.
Held by Collins J that the appellant could not maintain any challenge to the Taxing Master’s decision to proceed to tax the additional bills of costs for the following reasons: (1) that challenge involved a fundamental challenge to the jurisdiction of the Taxing Master and a jurisdictional challenge of that kind could not be advanced in an application for a review of taxation; (2) the appellant did in fact bring judicial proceedings challenging the decision of the Taxing Master to proceed to tax the additional bills; (3) the jurisdictional issues relied on by the appellant were not within the scope of the review of taxation in any event; (4) in light of the appellant’s agreement to taxation, any jurisdiction issue fell away in any event; and (5) the Taxing Master determined to tax the additional bills based on the finding made by him that the payments made by Mr Doyle were not properly informed voluntary payments. Collins J found that the appellant had failed to establish any error of approach on the part of the Taxing Master or demonstrate that he taxed the bills on the wrong basis. Collins J held that the Taxing Master was empowered to carry out the assessment he did by the provisions of ss. 27(1) & (2) of the Courts and Court Officers Act 1995; those provisions excluded the application of any conclusive presumption in favour of the costs claimed by the appellant and, even if that was not the case, the Taxing Master’s findings of fact would have excluded the application of Order 99, Rule 11(3) in any event, in the same way as they excluded the application of the Attorneys and Solicitors Act 1870 and the Solicitors Remuneration Act 1881. Collins J held that even if there was some implied presumption in favour of the costs, that presumption did not operate to preclude the Taxing Master from undertaking an examination of the files; having done so, the Taxing Master concluded that the fees charged by the appellant were unreasonable and excessive to a very significant degree and proceeded to assess what he considered to be fair and reasonable fees for the work undertaken. As regards the appellant’s complaint that his files were wrongly excluded from the material available to the Judge, that complaint was, in Collins J’s view, founded on a number of misconceptions.
Collins J held that the appellant had not established any error in the Judge’s analysis or in the conclusions that he reached and the order made by him. Accordingly, Collins J dismissed the appeal and affirmed the order of the High Court (including the order as to costs). Collins J’s provisional view was that, given that the appellant had been entirely unsuccessful in his appeal, he ought to pay Mr Doyle’s costs of the appeal.
Appeal dismissed.
JUDGMENT of Mr Justice Maurice Collins delivered on 24 November 2023
This is Mr Buckley's appeal from an Order of the High Court (Binchy J) made on 5 December 2018 (perfected on 8 January 2019) whereby, for the reasons set out in his judgment of 9 November 2018 ( [2018] IEHC 717), the Judge refused Mr Buckley's application for a review of a taxation conducted by the Respondent (“ the Taxing Master” or “ Taxing Master O'Neill”) relating to work undertaken by Mr Buckley as solicitor on behalf of Denis Doyle.
At the outset of his judgment, the Judge observed that it was “ something of an understatement” to say that the background to the application for review was “ complex”, adding that it was “ difficult to conceive of a case with a more eventful background leading up to an application of this kind” (Judgment, para 1). Fortunately, that background is so comprehensively and clearly set out by the Judge that, for present purposes, it can be recited relatively briefly.
Mr Buckley acted as Mr Doyle's solicitor over many years, going back as far as the late 1990s. He also acted for family members of Mr Doyle occasionally. The services provided by Mr Buckley related mainly to non-contentious business, principally a number of high-value property transactions. In late 2010/early 2011, a bitter dispute arose between Mr Doyle and Mr Buckley as to the level of fees that Mr Buckley had charged for those services. A significant proportion of those fees had already been paid directly from the property sales and other monies held by Mr Buckley on Mr Doyle's behalf. Mr Doyle was particularly concerned about a sum of €600,000 which had been paid to Mr Buckley by a company called Sandystream Limited as a deposit for a property purchase from Mr Doyle. That deposit had been forfeited when the transaction failed to proceed after Sandystream went into liquidation but, rather than being paid over to Mr Doyle, it appeared to have been applied by Mr Buckley in discharge of fees said to be due to him.
These concerns led to Mr Doyle commencing proceedings against Mr Buckley in July 2011. In the course of those proceedings, Mr Buckley swore on affidavit that only €45,000 (approx.) remained to the credit of Mr Doyle in his client account. More than €500,000 had been applied by Mr Buckley towards, fees, outlay and VAT. Mr Buckley also repeatedly stated on affidavit that, in the event that any sums were payable to Mr Doyle, he undertook to make any appropriate repayment following the determination of the Taxing Master.
Mr Doyle also issued a summons to tax in July 2011. However, in March 2012 Taxing Master O' Neill expressed dissatisfaction with that procedure. That led Mr Doyle to apply to the High Court seeking an order for taxation pursuant to section 2 of the Solicitors (Ireland) Act 1849 (as amended) (“ the 1849 Act”) or alternatively pursuant to the inherent jurisdiction of the court. That application, which was brought within the proceedings issued in July 2011, came on for hearing before Charleton J in the High Court and on 25 March 2013 he gave judgment ( [2013] IEHC 292).
Charleton J had been asked by Mr Doyle to refer for taxation bills of costs going back to 1998. While acknowledging that some of those bills might have been paid in error, he declined to go back as far as 1998. He directed taxation of two specific bills of costs relating to the Sandystream transaction (D215 and D226). As regards the remaining disputed costs (going back to 2000), he took the view that the Taxing Master should assess whether (1) a proper bill of costs had been furnished by Mr Buckley and (2) whether there was evidence of voluntary payment of those costs by Mr Doyle (at page 4). Where a proper bill had been furnished which had been paid in a “ regular way” by Mr Doyle (i.e. in a manner indicating his assent to payment of that bill), there was in his view no warrant for exercising the inherent jurisdiction to direct taxation. The judge summarised the outcome as follows:
“ Bills D215 and D226 are referred to taxation. All of the charges made by the defendant of the plaintiff are to be proved before the Taxing Master. In respect of any matter where a proper bill of costs furnished by the defendant solicitor to the plaintiff as his client is proven, together with a voluntary payment of that bill by the plaintiff, taxation is to be rejected. In respect of any matter where a proper bill of costs is not furnished, or where voluntary payment by the plaintiff to his solicitor is not apparent, taxation in respect of that is hereby ordered.” (at page 5)
The High Court gave liberty to apply should “ any intractable issue arise that is not capable of being dealt with in accordance with the principles set out herein” (at page 5).
That judgment effectively delegated to the Taxing Master the task of ultimately deciding what bills/costs were to be taxed, albeit by reference to the principles set out in the judgment and with the facility of going back to the High Court for further guidance if required. That no doubt appeared to be a pragmatic solution. However, it left significant and undesirable uncertainty as to the scope of the taxation exercise to be undertaken by the Taxing Master and significant room for further dispute between the parties on that issue.
In any event, the parties clearly accepted the judgment and order of Charleton J as neither brought an appeal from it. 1 The taxation then...
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