Kelly (plaintiff) v Minister for defence and Attorney General

• Jurisdiction: Ireland
• Judge: Ms. Justice Dunne
• Judgment Date: 08 July 2008
• Neutral Citation: [2008] IEHC 223
• Court: High Court
• Docket Number: [No. 18512 P/2001],[2001 No. 18512P]
• Date: 08 July 2008

[2008] IEHC 223

THE HIGH COURT

[No. 18512 P/2001]

Kelly v Min for Defence & AG

BETWEEN

BRIAN KELLY

PLAINTIFF

AND

THE MINISTER FOR DEFENCE AND THE ATTORNEY GENERAL

DEFENDANTS

RSC O.99 r38(3)

COURTS ACT 1981 S17(3)

RSC O.99 r37(18)

COURTS & COURT OFFICERS ACT 1995 S27(3)

SMYTH & GENPORT LTD v TUNNEY 1999 1 ILRM 211

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

SUPERQUINN LTD v BRAY UDC 2001 1 IR 459

COURTS ACT 1991 S14

COURTS ACT 1981 S17

COURTS ACT 1981 S17(5)

COURTS ACT 1981 S17(1)

O'CONNOR v BUS ATHA CLIATH (DUBLIN BUS) 2003 4 IR 459 2003/42/10229

BENNION STATUTORY INTERPRETATION: A CODE 4ED 2002 740

MAGUIRE v DPP 2004 3 IR 241 2005 1 ILRM 53 2004/29/6791

CRONIN v ASTRA BUSINESS SYSTEMS LTD (NO 2) 2004 3 IR 476

INTERPRETATION ACT 2005 S5

COURTS ACT 1981 S17(2)

S v MIN FOR JUSTICE 2004 1 IR 536 2005 1 ILRM 73 2004/45/10292

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000

OXFORD MODERN ENGLISH DICTIONARY "DETERMINED"

MURDOCH'S DICTIONARY OF IRISH LAW 4ED 2004

Abstract:

Practice & Procedure - Costs - Taxation - Review - Action commenced in High Court - Compromise of proceedings for amount within jurisdiction of Circuit Court - Whether proceedings determined in the High Court - Statutory interpretation - Words and phrases - "determined" - Whether ambiguous - Canons to be applied - Whether plaintiff entitled to recover costs greater than amount of damages recovered - Courts Act 1981 (No 11), s 17(3) - Rules of the Superior Courts 1986 (SI 15), O 99, r 38(3).

Facts: section 17(3) of the Courts Act 1981 provides that "in any action commenced and determined in the High Court, being an action where the amount of the damages recovered by the plaintiff exceeds £5,000 but does not exceed £15,000, the plaintiff shall not be entitled to recover more costs than whichever of the following amounts is the lesser, that is to say, the amount of such damages or the amount of costs which he would have been entitled to recover if the action had been commenced in the Circuit Court". The plaintiff and defendant compromised personal injury proceedings which had been instituted in the High Court in the sum of €9,500. An order was made that the defendant pay the plaintiff's costs when taxed. The matter was referred to the taxing master for taxation of costs. The taxing master taxed the costs at €11,142 and, in so doing, ruled that section 17(3) did not apply in the circumstances of the case. The defendant contended that the taxing master erred in that the amount for which the proceedings settled came within the figure provided in section 17(3) of the Act of 1981 and, consequently, the plaintiff was limited in the costs it could recover to the lesser of the two amounts, i.e. the amount of damages recovered.

Held by Ms Justice Dunne in affirming the ruling of the taxing master:

1. That if the court was to find that the taxing master had erred, the question to be addressed was whether the taxation was unjust. If after falling into error, the taxing master arrived at the correct figure or at figures within a range which it might have reasonably been open to him to have arrived at, the court was not to interfere.

2. Given that there was some ambiguity in the meaning of the word "determined" as used in section 17(3) of the Act of 1981 and that it was capable of a number of different meanings, the precise wording of section 17 as a whole had to be examined to determine if further guidance could be obtained from the section.

3. That, when the provisions of section 17 of the Act of 1981 were considered as a whole, the general effect of it was to impose a cap on costs that could be recovered by a successful plaintiff where the order made in his favour was made by a court which was not the lowest having jurisdiction to make the order granting the relief the subject of the order. The policy behind section 17 was to compel plaintiffs to bring their proceedings in the appropriate jurisdiction in respect of the relief being sought and to encourage that by ensuring that the costs recoverable by a successful plaintiff in circumstances where the claim had been brought in a higher jurisdiction than that which was necessary, shall not exceed the costs that would be recoverable had the case been brought in the appropriate jurisdiction.

4. That, having regard to the provisions of subsections 1 and 2 of section 17, the use of the phrase "in any action commenced and determined in the High Court" in section 17(3) could only mean determined following a hearing in court.

Reporter: P.C.

1 Ms. Justice Dunne on the 8th day of July 2008

2 The defendants herein have sought to review the taxation of costs in the above entitled proceedings pursuant to O. 99, r. 38(3) of the Rules of the Superior Courts in respect of a ruling of the Taxing Master on the 10 ^th December, 2007. The background to this application is that proceedings were commenced by the plaintiff in 2001 against the defendants in respect of an "army deafness" claim. The proceedings were listed for hearing before the High Court on the 22" June, 2005. On that date, the proceedings were settled for the sum of €9, 500. The order of the court made herein on that date (O'Leary J.) stated as follows:-

"And it appearing that a settlement has been reached herein. By consent it is ordered that the plaintiff's costs including reserved costs be taxed, that the defendants do pay the said costs on the Circuit Court scale when taxed and ascertained and that this action be struck out of the list.

And the court doth certify for senior counsel."

3 The matter came before the Taxing Master pursuant to a summons to tax dated 24 ^th January, 2006. An issue arose as to whether it was appropriate to restrict the plaintiffs costs by virtue of s. 17(3) of the Courts Act, 1981, which has the effect of restricting the costs that may be recovered where the amount of damages is between the Euro equivalent of IR£5, 000 and IR£15, 000 as is the case herein. Following the determination of this issue as a preliminary issue the Taxing Master on the 14 ^th July, 2006 ruled that s. 17(3) did not apply in the circumstances of the case. A notice of objections was filed by the defendants on the 4 December, 2006 and further submissions were filed by the parties and the matter came on for hearing before the Taxing Master on the 27 ^th June, 2007, and a further ruling was made on the 30 ^th July, 2007, which was not delivered until the 10 ^th December, 2007. The defendants' objections were rejected by the Taxing Master. Thereafter this notice of motion was issued seeking to review the taxation herein.

4 Accordingly, a net issue now arises in relation to this taxation, namely the applicability of s. 17(3) of the 1981 Act, in circumstances where proceedings are compromised. Unfortunately it appears that the issue is one on which there is a difference of opinion as between the two Taxing Masters.

5 No issue arises between the parties as to the principles applicable on a review of taxation. Order 99, r. 37(18) of the Rules of the Superior Courts 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."

6 O. 99, r. 38(3) of the Rules, provides for the review of decisions of the Taxing Master by the High Court in the following terms:-

"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. ..."

7 The role of the court as provided for under O. 99, r. 38(3) has been further modified by s. 27(3) of the Courts and Court Officers Act 1995, which provides as follows:-

"The High Court may review a decision 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, ... has erred as to the amount of the allowance or disallowance so that the decision of the Taxing Master ... is unjust. ..."

8 This provision was considered in the case of Smyth v. Tunney [1999] 1 I.L.R.M. 211. In his judgment McCracken J. set out the standard of review under s. 27(3) as follows at p 213:-

"The principle, upon which I must act, therefore, is not simply to decide whether the Taxing Master erred, but also, if I am to alter his decision, I must find that his taxation was unjust. I cannot approach this issue on the basis of trying to assess what costs I would have awarded had I been the Taxing Master."

9 In the case of Bloomer v. The Incorporated Law Society of Ireland, [2000] 1 I.R. 383, the passage quoted above was cited with approval where Geoghegan J. expounded on the approach to be taken by the court at p. 387 of his 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...