Kacper Antecki v The Motor Insurers Bureau of Ireland
|Mr. Justice Garrett Simons
|20 January 2021
| IEHC 15
|2010 No. 11215 P.
|20 January 2021
In the Matter of a Review of Taxation Pursuant to Section 27(3) of the Courts and Court Officers Act 1995
 IEHC 15
2010 No. 11215 P.
THE HIGH COURT
Tony McGillicuddy on behalf of the reviewing party instructed by Hayes Solicitors (Limerick)
Finbarr Fox, SC and Gráinne Berkery on behalf of the paying party instructed by Harrison O'Dowd Solicitors (Limerick)
JUDGMENT of Mr. Justice Garrett Simons delivered on 20 January 2021
This matter comes before the High Court by way of an application to review a decision of the Taxing Master. The review concerns the amount allowed by the Taxing Master in respect of the solicitor's general instructions fee.
The underlying proceedings are personal injuries proceedings arising out of a road traffic accident. The solicitor acting on behalf of the injured party in the proceedings had claimed an instructions fee in the sum of €70,433.51. The Taxing Master, however, only allowed a sum of €36,000.
The injured party's side submits that the Taxing Master made a number of errors of fact in his assessment, and that he failed to give proper weight to the complexity of the personal injuries proceedings. The sum allowed is said to be “unjust”.
For ease of exposition, the injured party's side will be referred to throughout this judgment as “ the party claiming costs”, and the party against whom costs are sought, i.e. the defendants in the underlying personal injuries proceedings, will be referred to as “ the paying party”.
The two rulings the subject-matter of the application for review of taxation were both made prior to the commencement, on 7 October 2019, of Parts 10 and 11 of the Legal Services Regulation Act 2015 (“ the LSRA 2015”). The review of taxation is thus subject to the “old” costs regime as provided for under section 27(3) of the Courts and Court Officers Act 1995. (See the transitional provisions under section 165 of the LSRA 2015).
Section 27(3) of the Courts and Court Officers Act 1995 provides as follows.
(3) 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 the amount of the allowance or disallowance so that the decision of the Taxing Master or the County Registrar is unjust.
As appears, the High Court will only interfere with the Taxing Master's assessment where the court is satisfied that two criteria are met. First, the Taxing Master must have erred as to the amount, and, secondly, the error is such that the decision is “unjust”.
The nature of the review jurisdiction has been summarised as follows by the High Court (Geoghegan J.) in (at page 387 of the reported judgment).
“[…] In considering whether the taxing master erred, I must see whether in arriving at his decision he had regard or excessive regard to some factor which he either should not have had any regard to or to which he should have had much less regard. I then have to consider whether there was some significant factor to which the taxing master ought to have had regard and to which he either had no regard at all or insufficient regard. Those are examples of errors of principle in the consideration of the facts but of course the court must also consider whether the taxing master has fallen into error in either law or jurisdiction.
If this court finds that the taxing master has erred in the sense described, this court then has to address the second question which is whether the taxation was unjust. In relation to any given item in the taxation which is in controversy, the justice or injustice of the decision will be determined by the amount. If after falling into error, the taxing master in fact arrives at the correct figures or at figures within a range which it might have reasonably have been open to him to have arrived at, the court should not interfere. The decision may not be exactly the same as the decision which the court would have made but it cannot be described as an unjust decision.”
There has been some debate in the subsequent case law as to whether, in considering whether a decision is “unjust”, a rule of thumb should be applied by reference to the monetary value of the erroneous allowance or disallowance relative to the correct allowance. In , Kearns J. suggested (at page 477 of the reported judgment) that the High Court should adopt a similar standard to that traditionally taken by the Supreme Court in reviewing awards of damages, that is to say, that it should not intervene to alter a finding of amount made by the Taxing Master unless an error of the order of 25% or more has been established in relation to an item under challenge.
This approach has not been followed in a number of High Court judgments. In , Peart J. suggested (at page 15) that the question of what is just or unjust must be viewed on a case to case basis, since different factors may be at play, rather than by an arbitrary formula. Similarly, in , Hedigan J. stated (at paragraph 31) that he did not find a mathematical or formulaic method of assessment to be attractive, and preferred a more flexible approach predicated upon a subjective examination of the circumstances of the individual case.
In determining whether an allowance is “unjust” in personal injuries proceedings, it is legitimate to have some regard to the amount of damages recovered. I will return to this issue at paragraphs 109 to 112 below.
The review of taxation in the present case is directed solely to the amount allowed by the Taxing Master in respect of the solicitor's general instructions fee. It may assist the reader in a better understanding of the issues in dispute between the parties to pause here, and to outline the nature of a general instructions fee. It should be emphasised, however, that the discussion which follows is concerned with the “old” legislative regime as it stood prior to the commencement of Parts 10 and 11 of the LSRA 2015, and prior to the amendments introduced to Order 99 of the Rules of the Superior Courts in December 2019.
Insofar as relevant to the present case, the format of a bill of costs is that prescribed under the pre-2019 version of Order 99. This requires that a bill of costs is to be set out in a series of columns. Each item is dated, and numbered sequentially; and the particulars of service provided are stated. In some instances, a fee for the particular type of work is prescribed under Appendix W, and where this occurs, the prescribed fee is recorded in the bill of costs against the item.
The prescribed fees have not changed substantively since they were fixed under the Rules of the Superior Courts 1962. The prescribed fees do not, therefore, reflect the reduction in the real value of money caused by inflation in the intervening fifty-five years. To take one example from the revised Bill of Costs in the present case: the fee recorded for the solicitor's attendance before the High Court (sitting in Ennis) is a mere €20.47.
Were the only costs recoverable by a party pursuant to a costs order to be calculated solely by reference to the prescribed fees, same would represent but a fraction of the legal costs actually incurred by that party. In practice, the bulk of the costs allowed on taxation in respect of a solicitor's work are attributed to the solicitor's general instructions fee. There is no fee prescribed under Appendix W in this regard.
This produces the anomalous result that a bill of costs typically consists of a series of very minor fee items (often less than €20) together with a single, much more substantial figure referable to the solicitor's general instructions fee. For example, the aggregate of the prescribed fee items in the present case comes to approximately €800, whereas the general instructions fee claimed is €70,433.51. (It should be emphasised that in highlighting this anomaly, no criticism is intended of the party claiming costs. Rather, this disparity between the prescribed fees and the discretionary fees is a function of the failure, prior to December 2019, to revise Appendix W).
This anomaly was criticised by the Supreme Court in ; (“ ”). Laffoy J. (delivering the unanimous judgment of the court) stated that it is not satisfactory that, in relation to the largest charge in the bill of costs, i.e. the solicitor's instructions fee, the paying party is presented with pages and pages of narrative, at the end of which is a single omnibus charge for all of the work as set out. The judge went on, however, to explain that it is for the legislature—not the courts—to produce a system which is more scientific, rigorous and, ultimately, better value for money. (See paragraph 122 of the reported judgment).
A solicitor's general instructions fee reflects paragraph 16 of Appendix W (Part II) of the Rules of the Superior Courts as follows.
16. Instructions for trial or hearing of any cause or matter, petition or motion, whatever the mode of trial or hearing (including the taking of accounts or...
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