Kathleen Barry & Others v Francis Spaight & Sons, Ltd

• Jurisdiction: Ireland
• Judgment Date: 06 October 1903
• Date: 06 October 1903
• Docket Number: (1902. No. 2443.)
• Court: King's Bench Division (Ireland)

Kathleen Barry & Others

and

Francis Spaight & Sons, Limited (2).

K. B. Div.

(1902. No. 2443.)

CASES

DETERMINED BY

THE KING'S BENCH DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1904.

Practice — Costs — Taxation between party and party — Fees to counsel — Instructions for brief — Service of subpoenas — Attendance of solicitor on the record as witness — Rules of Supreme Court, Ireland, 1893, Ord. LXV., R. 64.

In an action brought under Lord Campbell's Act, claiming damages in respect of the death of the plaintiff's husband, caused, as was alleged, by the negligence of the defendants, judgment was entered for the plaintiff for £2500 and costs. The plaintiff's solicitor paid to senior counsel fees on briefs on the trial of 20 guineas each, and to junior counsel a fee of 15 guineas, and refresher fees of 10 guineas and 7 guineas respectively. On the taxation of the plaintiff's costs as between party and party, the Taxing Master reduced the fees on counsels' briefs to 12 guineas and 8 guineas, and the refresher fees to 5 and 3 guineas respectively. He also reduced the charge of £100 claimed by the plaintiff's solicitor, for instructions for brief, to £20, and disallowed in toto a claim for allowances in respect of the said solicitor's attendance as a witness at the trial:—

Held, on a motion for review of the taxation of the plaintiff's costs in the

action, that the Taxing Master had failed to recognise the magnitude and difficulty of the case, and that the amounts paid to counsel on briefs on the trial should be restored; that the amount allowed to the plaintiff's solicitor for instructions for brief was inadequate, and that this item should be sent back to the Taxing Master for reconsideration.

The Court refused to interfere with the exercise of the Taxing Master's discretion in respect of the refresher fees, and affirmed the disallowance of the claim in respect of the attendance of the plaintiff's solicitor as a witness.

Application by the plaintiffs for a review of the taxation of their costs in this action, which was one under Lord Campbell's Act, claiming damages in respect of the death of the plaintiff Kathleen Barry's husband, a medical doctor formerly practising at Limerick, who died from injuries received in a collision that occurred between a car on which he was driving, and a dray laden with timber, the property of the defendants. The trial took place before the Lord Chief Justice and a special jury of the city of Dublin, during the Trinity Sittings, 1902, and resulted, after a hearing which lasted three days, in a verdict and judgment for £3000 being entered for the plaintiffs, this judgment being subsequently reduced by consent to one for £2500. The nature of the action is more fully mentioned in the judgment.

On the taxation of the plaintiffs' bill of costs, as between party and party, the Taxing Master reduced the fees of twenty guineas paid to each of the plaintiffs' senior counsel on briefs on the hearing, and a fee of fifteen guineas to junior counsel, to twelve guineas and eight guineas respectively. He reduced the refresher fees of ten guineas to senior counsel, and seven guineas to junior counsel, to five and three guineas respectively. He reduced a charge of £100 claimed by the plaintiffs' solicitor for “Instructions for Brief,” to £20. Charges for serving subpoenas upon witnesses were reduced from 5s. to 2s. 6d. each. The plaintiffs' solicitor claimed, in addition to the remuneration payable to him as solicitor on the record for attending the trial, allowances and travelling expenses as a witness, amounting to £22 1s., calculated at £3 3s. per diem for seven days. The Master disallowed this claim in toto, and also reduced an allowance of £1 per diem made to Mr. Kearney, a Railway Traffic Superintendent, for his attendance as a witness, to 17s. 6d. per diem.

The Solicitor-General (Campbell, K.C.), O'Shaughnessy, K.C., and P. Lynch, for the plaintiff:—

The Taxing Master has failed to recognise the fact that this was a case of importance and gravity, requiring the utmost vigilance and attention on the part of counsel and solicitor to bring it to a successful conclusion. The fees and refreshers were paid to counsel by the solicitor acting bona fide in the interests of his client, and ought not to have been reduced. The Taxing Master's statement that such fees are immoderate is an extravagant one: Maconchy v. Bank of New Zealand (1); Robb v. Connor (2); In re Galway Election Petition (3); Dyott v. Reade (4).

The sum of £100 claimed by the plaintiffs' solicitor was a moderate one, having regard to the nature of the case, and the difficulties thrown in his way by the defendants. Vouchers were produced for every item of expenditure, and for every hour of work done in connection with the case. These were never challenged, and this sum should not have been reduced.

A number of necessary witnesses resided in Limerick, and it was necessary to serve these with subpoenas. A subpoena is a writ, and in the schedule of costs (App. S., Part 1, No. 26, to the Rules of the Supreme Court (Ireland), 1893) 5s. is the minimum fee allowed for the service of writs, citations, summonses, etc.

As to the witnesses' expenses, Mr. Kearney, who occupied the position of Traffic Superintendent in the employment of the Great Southern and Western Railway, was entitled to £1 per diem under Order LXV., R. 64 (11) D. He was paid this amount, and the plaintiffs' solicitor should not be allowed to be out of pocket in respect of charges actually paid by him. There is no category allowing 17s. 6d. per diem. Mr. Gaffney's attendance as a witness was necessary, and was directed by senior counsel at consultation. If he had not been so examined, it would have been necessary to call an accountant to depose as to the contents of Dr. Barry's books, and the fact of his being a solicitor on the record for the plaintiffs should not disentitle him to his proper remuneration as a witness:

Heffernan v. Vaughan (1); Colhoun v. M'Namee (2); Craig v. Boyd (3).

D. B. Sullivan, K.C., and Phelps, for the defendants:—

The Taxing Master in making these deductions exercised a discretion which should not be interfered with. The action was an ordinary one of negligence, with no complication of law or fact, and bears no analogy to cases of magnitude such as Maconchy v. Bank of New Zealand (4), and Dyott v. Reade (5). The mere fact that, owing to Dr. Barry's position as a medical practitioner, large damages were obtained does not increase the importance or difficulty of the case.

As to the charges for service of subpoenas, we contend that a subpoena is not a writ; 2s. 6d. is the ordinary charge for the service of subpoenas, and the Taxing Master followed the established practice in only allowing this amount. Mr. Gaffney was paid the ordinary remuneration for his attendance in Dublin as solicitor for the plaintiff, and is not entitled to extra remuneration as a witness. His attendance was not directed by senior counsel in the direction of proofs.

Cur. adv. vult.

The Solicitor-General (Campbell, K.C.), O'Shaughnessy, K.C., and P. Lynch, for the plaintiff:—

D. B. Sullivan, K.C., and Phelps, for the defendants:—

Kenny, J.:—

This is an application by the plaintiffs for a review of the taxation of their costs of this action. The Taxing Master, whose rulings we have to consider, is a most experienced and competent officer, and, to judge from his report, he has given to the subject of the plaintiffs' objections the very greatest consideration. These objections deal with five different classes of items, viz.:—(1) counsels' fees on briefs at trial; (2) counsels' refreshers at trial; (3) solicitor's fee on instructions for brief at trial; (4) allowances for service of subpoenas; (5) disallowances to two witnesses at the trial.

As the discussion before us—and, I presume, before the Master also—turned largely on the gravity and complexity of the case

and on the alleged action of the defendants in creating, or at least increasing, the plaintiffs' difficulties in successfully prosecuting their claim, it becomes necessary to shortly state the circumstances that gave rise to the cause of action, and, as is alleged, subsequently impeded the prosecution of the latter.

The action was tried in Dublin. It was brought under Lord Campbell's Act by the widow and children of the late Dr. Barry, of Limerick, for recovery of damages in respect of Dr. Barry's death, resulting from fatal injuries received in a collision between a car of the defendants and one on which Dr. Barry was driving. The occurrence took place on the 28th November, 1901, and Dr. Barry succumbed to the injuries he received in the following month of February, 1902, whereupon the action was at once instituted. The venue was laid in Dublin, and not in Limerick, where all the parties resided, and where the cause of action arose, on the ground—which the Court afterwards on a venue motion held to be a reasonable one—that the defendants were an influential Limited Liability Company, carrying on their business in Limerick, and with a body of shareholders resident in that city and county. The trial lasted for three days, and resulted in a verdict for £3000, which by consent was subsequently reduced to £2500. The substantial, if not the only, issues between the parties were...