Marie Mahony v KCR Heating Supplies

• Jurisdiction: Ireland
• Judge: Mr. Justice Charleton
• Judgment Date: 22 February 2007
• Neutral Citation: [2007] IEHC 61
• Court: High Court
• Docket Number: [2001 No. 16829 P
• Date: 22 February 2007

[2007] IEHC 61

THE HIGH COURT

[No. 16829P/2001]

Mahony v KCR Heating Supplies

BETWEEN

MARIE MAHONY

PLAINTIFF

and

KCR HEATING SUPPLIES

DEFENDANT

COURTS AND COURT OFFICERS ACT 1995 S27

COURTS AND COURT OFFICERS ACT 1995 S27(3)

RSC O.99

FLYNN, HALPIN TAXATION OF COSTS 1ED 1999 CHAP 7

RSC O.99 r37(22)

SUPERQUINN LTD v BRAY URBAN DISTRICT COUNCIL & ORS 2001 1 IR 459

COURTS AND COURT OFFICERS ACT 1995 S27(1)

BOYNE v BUS ÁTHA CLIATH (DUBLIN BUS) & MCGRATH UNREP HIGH GILLIGAN 14.6.2006 2006/7/1214

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

DICKINSON (T/A JOHN DICKINSON EQUIPMENT FINANCE) v RUSHMER (T/A FJ ASSOCIATES) (COSTS) 2001 ALL ER (D) 369 (Dec)

SOUTH COAST SHIPPING CO LTD v HAVANT BOROUGH COUNCIL 2002 3 ALL ER 779

PRACTICE AND PROCEDURE

Costs

Taxation - Review - Taxing Master - Duties of Master - Considerations of High Court on review - Work actually done - Examination of sensitive material in file - Superquinn v Bray Urban District Council [2001] 1 IR 459 applied; Boyne v Dublin Bus [2006] IEHC 209 (Unrep, Gilligan J, 14/6/2006) considered; Quinn v South Eastern Health Board [2005] IEHC 399 (Unrep, Peart J, 30/11/2005) approved; South Coast Shipping Co Ltd v Havant Borough Council [2002] 3 All ER 779 followed -Rules of the Superior Courts 1986 (SI 15/1986), O 99 r 37(22) - Courts and Court Officers Act 1995 (No 31), s 27(1) and (3) - Motion allowed and instruction fee reduced (2001/16829P - Charleton J - 22/2/2007) [2007] IEHC 61Mahony v KCR Heating Ltd

The defendant brought a motion to review the taxation of the plaintiff's costs arising out of a determination of the Taxing Master. The only item in contention was the solicitor's instruction fee in the matter, which was in the sum of €35,000. The plaintiff's case, which related to personal injuries suffered due to bullying in the course of her employment, settled for €50,000. The Taxing Master regarded a letter by the plaintiff's solicitor explaining why she would not revert to her client to ask for the full file regarding her case to be disclosed to the Master as evidence that the case was difficult and complicated and therefore involved considerable work.

Held by Charleton J. in varying the order of the Taxing Master and making no order as to the costs of this application: That the Taxing Master erred in deciding that the plaintiff's solicitor had to deal with this matter as a difficult and complicated case by reason of an assertion in inter partes correspondence in respect of which the party seeking taxation had no opportunity to reply. Furthermore, the Master erred in failing to seek to examine the documents in this case with a view to determining what work was actually done. In relying on the transcript in this case, the offer of €24,000 by the defendant for the solicitor's instruction fee was appropriate should be substituted for the Taxing master's ruling.

Reporter: L.O'S.

1 JUDGMENT of Mr. Justice Charleton delivered on the 22nd day of February, 2007

2 1. This is the defendant's motion to review the taxation of the plaintiff's costs arising out of a determination of the Taxing Master on 20th March, 2006. There is only one item which is in contention between the parties and that is the solicitor's instruction fee in the matter in the sum of €35,000. The case was settled for €50,000.

Background

3 2. I recite the facts which follow in a guarded way and in the context that the controversy between the plaintiff and the defendant was settled. The plaintiff worked for the defendant for about ten years, from 1991. She left and then initiated proceedings claiming personal injury due to the manner in which she had been treated by the defendant. This involved allegations of bullying which were particularised from the point of view of demeaning treatment both of a general kind and by reason of sexual innuendo. The plaintiff was the subject of seven different medical reports; two from her family doctor, three from psychiatrists and two from the practitioners in the Anti-bullying Research and Resource Centre at Trinity College, Dublin. It is clear from the papers submitted that her solicitor approached this case in a professional way and discharged her duty to the plaintiff with a high level of professional skill. In the result, the case was settled for €50,000, together with costs to be taxed in default of agreement. There is no issue as to the bulk of the items. There is no doubt that these were dealt with properly by the Taxing Master. There is particular focus in relation to one aspect of his procedures and an issue that relates to the solicitor's instruction fee.

Procedure

4 3. As is normal, the plaintiff submitted a bill of costs and the Taxing Master made a preliminary allowance. An objection was then lodged to the taxation of costs and submissions were then made by costs drawers on behalf of the plaintiff and the defendant. There is no doubt that the Taxing Master would have found these submissions helpful as they are expertly prepared and well set out. An oral hearing followed in respect of which a transcript, dated 11th November, 2005, has been made available.

5 4. In essence, on behalf of the defendant it was urged on the Taxing Master that the solicitor's €35,000 instruction fee could not be justified and that any argument that might be made in support thereof would require a diligent perusal by him of all the papers generated in the case in order that he might assess the work done on the plaintiff's behalf. Mr. Cannon, on behalf of the defendant, urged the following on the Taxing Master:-

"Now, Master, for Mr. Sludds to suggest that I am relying solely on the comparable cases is not the situation. Actually, the opposite applies here. Mr. Sludds still has not produced sufficient evidence to show the extra work that would command an instruction fee for €50,000 — a personal injury claim which is a harassment claim, an instruction fee of €35,000. Without proper proof and evidence of work done and time spent, I cannot see how a fee of that level can be maintained."

6 5. Mr. Sludds fairly suggested on behalf of the plaintiff that he would have no difficulty in furnishing his full file if the Master wished to have regard to it. The Taxing Master suggested that a submission might be made on a later date. The parties exchanged letters: the defendant, on the one hand, suggesting that the matter should again go before the Taxing Master with a full file, and the plaintiff refusing same. That letter, as to its relevant part, read:-

"Throughout this case, Ms. Mahony remained extremely upset about the circumstances and nature of her treatment by the defendants whilst in their employment. On virtually each occasion on which he met with her or discussed the matter on the phone, she became extremely distressed and, you will recall from the medical evidence, there was an element of her re-experiencing the abuse which she suffered, when the matter was raised with her again. In fact, it was very difficult to persuade her to see the necessary medical practitioners in the first instance as she was so reluctant to visit the instances of abuse, which continued to be very distressing for her. In order to disclose the file to another party it will be necessary for us to contact Ms. Mahony in relation to these proceedings again to obtain her consent to the file being released. We have no doubt that in doing so we would cause distress to our client. It is now 20 months since this matter was settled and the date which this matter was listed for hearing i.e. 20th July, 2004. We are concerned that to raise this matter now, when presumably our client has managed to effectively put the matter behind her, would be very disadvantageous to her. We believe that the pleadings and disclosed reports should be of assistance."

7 6. In the result, there was no further hearing. The Taxing Master gave a reasoned ruling on this issue on the 20th day of March, 2006. After a recital of case law and comparable precedents, he quoted the above letter and commented on it by stating:-

"It is evident from the foregoing that the solicitor for the costs had quite a difficult and complicated case to manage and bring to fruition. The difficulties in this case have also been highlighted by the plaintiff's solicitors in a letter of 3rd March from Mr. John Sludds of Messrs. Behan and Associates, Legal Cost Accountants. The letter arose in the context of the disclosure of the solicitor's file to assist me in the assessment of costs herein."

8 7. It is evident on the plain wording of the foregoing that the Taxing Master regarded the letter explaining why the plaintiff's solicitor would not go back to her client to ask for the full file to be disclosed to the defendant as evidence that the case was difficult and complicated and therefore involved considerable work.

Law

9 8. Section 27 of the Courts and Court Officers Act, 1995, deals with the taxation of costs. Section 27(3) provides:-

" (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."

10 9. Order 99 of the Rules of the Superior Courts deals with the mechanism whereby costs are taxed. To the extent to which he is not limited by the rules in O. 99, the Taxing Master is entitled to...