Monica Leech v Independent Newspapers Ireland Ltd

• Jurisdiction: Ireland
• Judge: Ms. Justice Ní Raifeartaigh
• Judgment Date: 16 July 2021
• Neutral Citation: [2021] IECA 203
• Court: Court of Appeal (Ireland)
• Docket Number: Court of Appeal Record No. 2020/72

In the Matter of a Taxation of Solicitor-Client Costs

Between

Monica Leech

Plaintiff/Appellant

and

Independent Newspapers Ireland Limited

Defendant

[2021] IECA 203

Faherty J.

Ní Raifeartaigh J.

Collins J.

Court of Appeal Record No. 2020/72

THE COURT OF APPEAL

Defamation – Solicitor-client costs – Tax – Appellant seeking to have her solicitor-client costs taxed by the Taxing Master in respect of defamation proceedings she brought against the defendant – Whether the trial judge was correct in how he approached the issue of an alleged quantification error

Facts: The plaintiff/appellant, Ms Leech, sought to have her solicitor-client costs taxed by the Taxing Master in respect of defamation proceedings she brought against the defendant, Independent Newspapers. She had dispensed with the services of the solicitor McCann Fitzgerald after her High Court defamation proceedings and prior to appeal. She maintained that the Taxing Master made an error in one of his rulings (the initial ruling), characterised by her as a “quantification error” involving a simple arithmetical error as distinct from something of a more substantive nature. The appellant did not notice the point in question until after the taxation process had concluded, and then sought to include it as a ground for challenging the taxation ruling in her application to the High Court to review that ruling. The High Court found that the appellant was not entitled to raise that issue on review because she had not raised it as an objection before the Taxing Master. The trial judge also dealt with the point on the merits at paragraph 62 of his judgment; he also ruled against her in that regard. The key question on appeal to the Court of Appeal was whether the trial judge was correct in how he approached the issue of the alleged quantification error. The solicitor complained that the appellant sought to argue before the High Court a point not raised before the Taxing Master and that the appellant sought to argue additional points on appeal which were not argued before the High Court.

Held by Ní Raifeartaigh J that it was not clear that the Taxing Master in fact committed a mere arithmetical error and/or that his ultimate conclusion on the solicitor’s instruction fee was manifestly the product of an error of that type. Ní Raifeartaigh J held that s. 27(3) of the Courts and Court Officers Act 1995 should not be read as a stand-alone method or test of review but should be interpreted within the context of the taxation-and-review procedure set out in Order 99 rule 38 of the Rules of the Superior Courts. Ní Raifeartaigh J held that the general prohibition on raising new objections/arguments in the High Court described in Re Walshe (1962) 96 ILTR 173 and subsequent cases did apply to the appellant in the circumstances of this case and the trial judge was correct so to conclude. Ní Raifeartaigh J held that the appellant was not entitled to challenge the prohibition by means of an argument constructed in relation to Article 6 of the European Convention on Human Rights, in circumstances where this was not put pleaded or put forward in the High Court and was raised for the first time on appeal.

Ní Raifeartaigh J held that, in all of the circumstances, she would dismiss the appeal. As the solicitor had been successful in the appeal, Ní Raifeartaigh J’s provisional view was that it was entitled to the costs of the appeal.

Appeal dismissed.

JUDGMENT of Ms. Justice Ní Raifeartaigh delivered on the 16th day of July, 2021

1. The issue raised on appeal

1 This appeal concerns the scope of the High Court's jurisdiction to review a ruling of the Taxing Master under the taxation regime which was in force prior to the commencement of the Legal Services Regulation Act 2015 (Part 10). More specifically the case relates to the jurisdiction of the High Court on review in relation to an issue which was not raised during the taxation process and was complained of in the High Court for the first time. The appellant asserts that where the Taxing Master makes what is characterised by her as a “quantification error”, that is to say, an error involving a simple arithmetical error as distinct from something of a more substantive nature, the High Court has power to correct that error even if it was one which could have been raised in the taxation process but was not. That argument – as well as that characterisation of the alleged error made by the Taxing Master — is in dispute. The defendant to the defamation proceedings is not a party to this appeal; the parties are the appellant Ms. Leech and the solicitors McCann Fitzgerald who previously acted for Ms. Leech in those proceedings. This arises in the circumstances described below.

2 The appellant sought to have her solicitor-client costs taxed by the Taxing Master in respect of defamation proceedings she brought against Independent Newspapers. She had dispensed with the services of the solicitor McCann Fitzgerald (hereinafter “the Solicitor”) after her High Court defamation proceedings and prior to appeal. She maintains that the Taxing Master made an error in one of his rulings (referred to in this judgment as the “ Initial Ruling”). She says this error is of the character described above. The appellant did not notice the point in question until after the taxation process had concluded, and then sought to include it as a ground for challenging the taxation ruling in her application to the High Court to review that ruling. The High Court found that the appellant was not entitled to raise this issue on review because she had not raised it as an objection before the Taxing Master. Lest he be wrong, and for completeness, the trial judge also dealt with the point on the merits at paragraph 62 of his judgment; he also ruled against her in that regard. The key question on this appeal is whether the trial judge was correct in how he approached this issue of the alleged quantification error.

3 Other points were raised by the appellant in the High Court but they have not been pursued on this appeal. To that extent the issues on appeal are narrower than those in the High Court. However, the Solicitor complains that the appellant seeks to introduce new arguments on appeal which were not before the High Court. Thus there is, overall, a double complaint by the Solicitor in connection with ‘new issues’; first, complaint is made that the appellant sought to argue before the High Court a point not raised before the Taxing Master, and secondly, complaint is made that the appellant now seeks to argue additional points on appeal which were not argued before the High Court.

2. Events prior to the commencement of the taxation process in the present case

4 The appellant consulted the Solicitor in relation to a series of articles that had been published in the Evening Herald newspaper between 30 November 2004 and 15 December 2004. She instituted defamation proceedings against Independent Newspapers Ireland Ltd. She also instituted similar proceedings in respect of articles in other newspapers published by the defendant.

5 The case came on for hearing in the Jury List in the High Court in June 2009 and the trial lasted for seven days. The Jury awarded the sum of €1,872,000 to the appellant. The defendants then appealed to the Supreme Court, which awarded a lesser sum of €1,250,000.

6 The work done by the Solicitor took place over the course of approximately six years and eight months, between 15 December 2004 and August 2011. The plenary summons had issued on 21 December 2004 and the jury verdict was delivered on 24 June 2009.

7 The relationship between the Solicitor and the appellant broke down after the trial. By letter dated 8 August 2011, the Solicitor said that it could no longer act for her. The reasons for the breakdown are set out in the Objections Ruling of the Taxing Master and are not relevant to this judgment. The appellant requested that the file be transferred to another firm on 11 August 2011. An order allowing the Solicitor to come off record was granted on 7 February 2012. This was granted upon an undertaking by the appellant to discharge the fees of the Solicitor upon agreement or completion of taxation. It was also ordered that the Solicitor provide its file in the proceedings to a firm of solicitors nominated by the appellant; that it furnish a bill of costs to the appellant to be taxed in default of agreement; and that the appellant pay the fees due to the Solicitor when agreed or taxed and ascertained.

8 The taxation process was commenced by the issue of a summons on 13 February 2014 and took place over a number of years thereafter. Before setting out the events which occurred during the taxation process, I will give a brief overview of the legal regime which was in place at the time.

3. The legal regime in force at the relevant time

9 The ruling which is the subject-matter of the application for review of taxation was made prior to the commencement of Parts 10 and 11 of the Legal Services Regulation Act 2015 (“the LSRA 2015”). The taxation itself and the review of taxation conducted by the High Court were thus conducted under the “old” taxation regime as provided for under s.27(3) of the Courts and Court Officers Act 1995 (“the 1995 Act”) and Order 99 of the Rules of the Superior Courts.

10 S.27 of the 1995 Act provides in relevant part as follows:

• “27.—(1) On a taxation of costs as between party and party by a Taxing Master of the High Court… or on a taxation of costs as between solicitor and client by a Taxing Master of the High Court, the Taxing Master … shall have power on such taxation to examine the nature and extent of any work done, or services rendered or provided by counsel (whether senior or junior), or by a solicitor, or by an expert witness appearing in a case or any expert engaged by a party, and may tax, assess and determine the value of such...