Kelly v Breen

• Jurisdiction: Ireland
• Judge: Mr. Justice Hamilton
• Judgment Date: 04 April 1978
• Neutral Citation: 1978 WJSC-HC 287
• Court: High Court
• Date: 04 April 1978

1978 WJSC-HC 287

THE HIGH COURT

KELLY v. BREEN

ANNE CHRISTINA KELLY

.v.

IMELDA BREEN

1 Judgment of Mr. Justice Hamilton delivered the 4th day of April 1978

2 This matter came before me by way of motion pursuant to Order 99 Rule 38 of the Rules of the Superior Courts to review the taxation of the Bill of Costs presented by the Plaintiff pursuant to an award for costs granted at the conclusion of the hearing of the above entitled action on the 11th day of March, 1975.

3 In this case the plaintiff who was the legal personal representative and the lawful widow of William P. Kelly who died on the 12th day of August, 1973 claimed damages, on her own behalf and on behalf of the other dependents of the said William P. Kelly, against the defendant the legal personal Representative of Daniel Breen deceased alleging that his death was due to the negligence of the said Daniel Breen in the driving, management, care and control of a motor car his property.

4 The Defendant in her defence denied that the said Daniel Breen was guilty of negligence, alleged that the deceased was guilty of contributory negligence and denied that the plaintiff and other dependents of the said William P. Kelly suffered the alleged loss and damage.

5 The matter came for hearing before me and a jury in Galway on the 10th and 11th days of March, 1975.

6 The jury found that the said Daniel Breen was guilty of negligence that the deceased was not guilty of contributory negligence and assessed damages in the sum of £36,104 which together with damages for mental distress subsequently assessed by me made a total award of £37,104.

7 At the conclusion of the case I awarded costs to the plaintiff.

8 In pursuance of the said Order a Bill of Costs was prepared on behalf of the plaintiff and was taxed before the Taxing Master on the 29th day of May, 1975.

9 The solicitor for the plaintiff was dissatisfied with certain of the allowances and disallowances which had been made by the Taxing Master on taxation objected to the said taxation and the hearing of the plaintiff's solicitors objection was heard by the Taxing Master on the 28th day of July, 1975. Having heard submissions on behalf of the solicitor for the plaintiff the Taxing Master allowed the objections referred to in his report submitted to this Court on the 4th of November, 1975 and the plaintiff's solicitor being dissatisfied with the allowances and disallowances on taxation carried in objections which were ruled upon on the 28th day of July, 1975 and caused to be issued on the 21st day of October, 1975 a Notice of Motion applying to this Court for the review of the Taxing Master's rulings in respect of a number of items.

10 These items refer to

11 1. The General Instructions Fee for the plaintiff's solicitor, being Item No. 145, and

12 2. The fees allowed to Counsel by way of Brief Fee and Refresher fee and being Items No. 149, 152, 155, 170, 172 and 174 on the Bill of Costs submitted by the plaintiff's solicitor.

13 It is quite clear from the Taxing Master's report that he regarded and so stated that

"This was a particularly heavy and difficult case and sizable having regard to the amount of damages awarded (£37,104). It was evident to me that the proof of negligence would be burdensome and that the plaintiff's solicitor would be required to make exhaustive and difficult research as to the true earnings of the deceased William Kelly, he being a mechanical assembler with AnCo of Galway, but in addition a musician for which he received remuneration".

14 Having had the benefit of hearing the case I agree wholeheartedly with this view expressed by the Taxing Master.

15 I consider it appropriate at this stage to deal with Items No. 149, 152, 155, 170, 172 and 174 all of which relate to Counsel's Brief Fees and Refresher Fees.

16 The amounts Claimed in the plaintiff's Bill of Costs for Senior Counsels Brief Fee were two hundred and fifty guineas with Refreshers of one hundred and twenty five guineas. Junior Counsels fees were in proportion and it will therefore suffice to confine attention to what happened with regard to the fees of Senior Counsel.

17 The Taxing Master reduced Senior Counsels Brief Fees from two hundred and fifty guineas to one hundred and seventy five and the Refresher Fees from one hundred and twenty five guineas to eighty guineas.

18 In his report on the objections brought into his taxation the Taxing Master says that

"In considering the amount of Counsels Brief Fees I had careful regard to the size and nature of the case, the number of witnesses which was unusually large, the amount of damages awarded (£37.104) and generally to the work and service of Counsel in a case of this nature. Having considered the matter at length I came to the conclusion that a fair, just and reasonable fee by way of Brief Fee on a party and party basis would be the sum of one hundred and seventy five guineas with an appropriate reduction in the case of Junior Counsel.

As to the Refresher Fees claimed by Counsel. Again I considered the nature and content of the case and I considered that the sum of eighty guineas to be a fair and reasonable fee by way of Refresher Fee.

On the hearing of the objections and notwithstanding that strong submissions were made to me that I should increase both the Brief and Refresher Fees I could see no good reason for increasing the fees by way of Brief Fee and Refresher Fee as allowed by me on Taxation and I ruled accordingly"

19 The plaintiff's solicitor had objected to these deductions on the grounds, as stated in the grounds of objections submitted by him to the Taxing Master, that

"The plaintiff objects to the deductions of seventy five guineas from Senior Counsels Brief Fees and forty five guineas from Senior Counsels Refresher Fees and corresponding proportional deductions from Junior's Brief Fee and Refresher Fee. It is submitted that the fees marked are only fair and reasonable having regard to the importance of the case, the nature and extent of the evidence to be considered and presented and the responsibility resting upon Counsel. It is also submitted that Counsel marked their fees after consultation with the Agents and that the fees as marked had been paid in full".

20 It is clear from the terms of the Taxing Master's report that he, the Taxing Master, considered that he was entitled to and did in fact decide what fees should be paid to Counsel, that in so deciding he had regard to the size and nature of the case, the humber of witnesses which was unusually large, the amount of the damages awarded and generally to the work and service required of Counsel in a case of this nature. Counsel on behalf of the plaintiff has urged that the Taxing Master erred in principle having regard to the principle laid down by Mr. Justice Gannon in Dunne .v. O'Neill ( 1974 Irish Reports page 180), Counsel on behalf of the defendant has submitted that the principle as laid down by Mr. Justice Gannon in Dunne .v. O'Neill was incorrect and that the Taxing Master had a discretion to do as he did in this case namely to fix a fair, just and reasonable fee by way of Brief Fee for Counsel having regard to the size and nature of the case the number of witnesses, the amount of damages awarded and generally to the work and service required of Counsel in a case of this nature. In the course of his Judgment in Dunne .v. O'Neill( 1974 Irish Reports 180) Mr. Justice Gannon at page 189 of the report said

"It is no part of the function of the Taxing Master on taxation of costs, or of the Court on review of the taxation, to examine the nature or quality of the work done by or required of Counsel or to assess, by measurement of fees, the value of Counsels work. The sole matter with which the Taxing Master is concerned in respect of the items which are the subject matter of this application is whether to allow in whole or in part the disbursements made by the solicitor in the course of his practice in respect of fees to Counsel retained by him in an action in accordance with the rules relating to party and party taxation".

21 The significance of the fact that these items are disbursements made by the solicitors is underlined in the frequently quoted passage from the Judgment of Sullivan M.R. in Rob .v. O'Connor ( 1875 Irish Reports 9 Equity 373 in which at page 380 of the report he says:-

"The principle which I think should be acted on and I am prepared to enforce is this, that if a solicitor, acting bona fide within the rule I have above stated, delivers a Brief with a fee marked thereon to Counsel, prima facie that fee ought to be allowed even on party and party costs; otherwise the solicitor must be exposed in every case do the risk of having to pay out of his own pocket money which he honestly and bona fide paid to his Counsel, unless he has taken the precaution of fixing the fee beforehand with his client".

22 Because these items are disbursements made by a solicitor in the course of his practice in respect of fees to Counsel retained by him on his clients behalf the amounts of the disbursements should be assessed on the basis of what a practising solicitor who is reasonably careful and reasonably prudent would consider a proper and reasonable fee to offer to Counsel. This standard does not involve any presumption in favour of particular fees allotted by a solicitor to Counsel of his choice, but it does involve having due regard to the changes in what the practising solicitor considers to be reasonable derived from his day to day and year to year experiences in the course of his practice."

23 At page 190 of the report Mr. Justice Gannon went on to say:-

"Upon the consideration of the allowance or disallowance in part of the solicitor's disbursement in respect of fees on the Briefs for Counsel, the principle for so long proposed by the Courts to the Taxing Masters is that they...