Lowe tavern (plaintiff) v South Dublin County Council

• Jurisdiction: Ireland
• Judge: Mr. McGovern J.
• Judgment Date: 28 November 2006
• Neutral Citation: [2006] IEHC 383
• Court: High Court
• Date: 28 November 2006

[2006] IEHC 383

THE HIGH COURT

2002/08295 P

Lowe Taverns Ltd v South Dublin County Council

BETWEEN

LOWE TAVERNS (TALLAGHT) LIMITED

PLAINTIFF

AND

THE COUNTY COUNCIL OF THE COUNTY OF SOUTH DUBLIN AND THE SQUARE MANAGEMENT LIMITED

DEFENDANTS

COURTS & COURT OFFICERS ACT 1995 S27(3)

SUPERQUINN LTD v BRAY URBAN DISTRICT COUNCIL (UDC) & ORS 2001 1 IR 459 1999 23 7593

RSC O 99 r10(2)

MCGARRY, AG v SLIGO CO COUNCIL 1991 1 IR 99

SMITH v BOLLER 1875 LR 19 Eq 473

RSC O 99 r11

MCGRORY v EXPRESS NEWSPAPERS PLC UNREP MURPHY 21.7.1995 1998/25/9872

SMYTH & GENPORT LTD v TUNNEY 1999 1 ILRM 211 1998 30 12263

TOBIN & TWOMEY SERVICES LTD v KERRY FOODS LTD 1999 3 IR 483

MIN FOR FINANCE v GOODMAN (NO2) 1999 3 IR 3

BULA LTD & ORS v FLYNN (TAXING MASTER) UNREP MCGUINNESS 7.3.2000 2000/18/6883

BLOOMER v INCORPORATED LAW SOCIETY OF IRELAND & AG 2000 1 IR 383 1999 3 397

COURTS & COURT OFFICERS ACT 1995 S27

QUINN v SOUTH EASTERN HEALTH BOARD UNREP PEART 30.11.2005 2005/51/10765 2005IEHC 399

BOYNE v BUS ATHA CLIATH (DUBLIN BUS) & MCGRATH UNREP GILLIGAN 14.6.2006 2006 IEHC 209

RSC O 99 r11(3)

PRACTICE AND PROCEDURE: costs

the Taxing Master made orders in relation to party and party costs and solicitor and client costs. The plaintiff brought a motion to review the orders in relation to solicitor and client costs and party and party costs. The defendant brought a motion seeking to review the decision in respect of party and party costs.

Held by Mr Justice McGovern in refusing to vary the Taxing Master’s order that the court had to be satisfied that the taxing master erred and that his taxation was unjust. The Taxing Master was a person with special expertise in the area of costs and was, in effect, a specialist tribunal. Accordingly, the courts should operate on the basis of curial deference and judicial restraint when examining his decisions. The Taxing Master did not err in principle or in law in coming to the decisions which he made on the party and party taxation.

With regards to solicitor and client costs, the onus of proof was on the plaintiff to show that the costs objected to were of an unreasonable amount or were unreasonably incurred and the court should not consider whether or not there was an equivalence between the party and party costs allowed and the solicitor and client costs unless the difference was so great as to be unjust.

Reporter: P.C.

1 JUDGMENT of Mr. McGovern J. delivered on 28th day of November 2006

2 This matter comes before the court on foot of three notices of motion to review taxation of costs. The plaintiff has brought two motions. The first is a motion to review the taxation of the solicitor and client costs awarded on foot of the Taxing Master's ruling on the 25th July, 2005. The second is a motion to review the party and party costs allowed by the Taxing Master by his ruling on the 25th of July, 2005. The defendants have brought a motion to review the party and party costs on foot of the Taxing Master's ruling on the 25th July, 2005.

THE LAW

3 Section 27(3) of the Courts and Court Officers Act, 1995 governs the jurisdiction of the High Court on reviews of taxation. The section reads as follows:

"(3) The High Court may review a decision of the 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 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."

4 In Superquinn Limited v. Bray Urban District Council and Others [2001] 1 I.R. 459 Kearns J. referred to s. 27(3) of the 1995 Act and its impact on the process of review of taxation. At p. 475 he stated:-

"Under the old system, the court had a wide ranging remit and, in the context of a review under Order 99, r. 28, could "make such order as may seem just". Now under s. 27(3) of the Act of 1995 it can intervene "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".

"This wording seems to represent a significant shift of emphasis and to impose a heavier burden on any party seeking to challenge a ruling of the Taxing Master. This interpretation is acknowledged at p. 350 of the Minister for Finance v. Goodman (No. 2) [1999] 3 I.R. 333 and can scarcely be a matter of doubt. It would suggest (when taken in conjunction with s. 27(1) and (2) that the court should exercise a considerable degree of judicial restraint in the context of a review, although it must clearly intervene if a failure to do so would result in an injustice."

5 Taxation of party and party costs is governed by Order 99, r. 10(2) of the Rules of the Superior Courts. The rule provides that on a party and party basis "… there shall be allowed all such costs as were necessary or proper for the attainment of justice or for enforcing or defending the rights of the party whose costs are being taxed". In Attorney General (McGarry) v. Sligo County Council [1991] 1 I.R. 99 at p. 119 Walsh J. said:-

"nothing can be recovered in party and party taxation unless three conditions are fulfilled, (a) that the court has made an order for costs in favour of the party, (b) that the matter claimed had been properly incurred, and (c) that the party in question is under legal liability to pay them".

6 In Smith v. Boller (1875) L.R.19 Eq 473 Malins V.C. stated at p.475:-

"It is of great importance to litigants who are unsuccessful that they should not be oppressed by having to pay an excessive amount of costs." In that case the plaintiff was unsuccessful. The judge went on to say "… I think he ought to bear no more than the necessary costs. I adhere to the rule which has already been laid down, that the costs chargeable under a taxation as between party and party are all that are necessary to enable the adverse party to conduct the litigation, and no more. Any charges merely for conducting litigation more conveniently may be called luxuries and must be paid for by the party incurring them."

7 Solicitor and client costs are dealt with in Order 99 rule 11 of the Rules of the Superior Courts. The rule reads as follows:-

8 2 "(1) On a taxation as between solicitor and client, all costs shall be allowed except insofar as they are of an unreasonable amount or have been unreasonably incurred.

9 (2) Any costs which in the circumstances of the case are of an unusual nature and such that they would not be allowed on a taxation of costs as between party and party shall, unless the solicitor shall have expressly informed his client in writing before they were incurred that they might not be so allowed, be presumed, until the contrary has shown, to have been unreasonably incurred.

10 (3) On a taxation as between solicitor and own client, all costs incurred with the express or implied approval of the client evidenced by writing shall be conclusively presumed to have been reasonably incurred, and where the amount thereof has been so expressly or impliedly approved by the client, to have been reasonable in amount". It is not necessary for the purpose of this matter to quote the rest of the rule.

11 On party and party costs the onus is on the party presenting the bill to prove that it is reasonable. In the case of solicitor and own client costs there is a presumption in favour of the solicitor. In McGrory v. The Express Newspapers Plc (Unreported, High, Court, 21st July, 1995) Murphy J. stated:-

"I accept that Order 99, Rule 11(1) imposes on a party opposing a bill on taxation of costs as between solicitor and client the onus of approving that any particular costs objected to were of an unreasonable amount or were unreasonably incurred."

12 I agree with the views expressed by Kearns J. in Superquinn Limited v. Bray UDC where he stated at p. 480:-

"it seems to me that in the aftermath of the Act of 1995 any ruling of the Taxing Master must of necessity, set out in some detail an analysis of the work and the reasoning which leads to the determination made in respect of solicitors instructions fees, and counsels fees, particularly having regard to the powers and responsibilities imposed on the Taxing Master by s. 27(1)(2) and on the court by s. 27(3), given that the court may be called upon to review taxation."

13 In Smith v. Tunney [1999] 1 I.L.R.M. 211 McCracken J. stated:-

"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 his taxation was unjust."

14 Kelly J. agreed with that statement in Tobin and Twomey Services Limited v. Kerry Foods Limited [1999] 3 I.R. 483 and Laffoy J. agreed with it in Minister for Finance v. Goodman (No 2). It was also approved by McGuinness J. in Bula Ltd v. Flynn (Unreported, High Court, 7th March, 2000). It seems to me that this is a correct statement of the law. In Bloomer v. Incorporated Law Society [2000] 1 I.R. 383 Geoghegan J. took a...