Mooreview Developments Ltd and Others v First Active Plc and Others
| Jurisdiction | Ireland |
| Judge | MASTER |
| Judgment Date | 17 January 2013 |
| Neutral Citation | [2013] JILL-IESC 011701 |
| Court | Supreme Court |
| Date | 17 January 2013 |
[2013] JILL-IESC 011701
SUPREME COURT
BETWEEN
AND
AND
BETWEEN
AND
BETWEEN
AND
1. By seven orders of the Supreme Court dated 23 rd February, 2012, First Active plc. and Ray Jackson were granted a stay on the prosecution of Supreme Court appeals in the above cases until security for the costs of the appeal be provided by the various plaintiffs/appellants. It was further ordered that the matters be remitted to the Master of the High Court to fix the amount of such security in each appeal.
2. The application now before me is to fix the amount of such security.
3. The costs in question are the party and party costs likely to be incurred (and to tax) in respect of the seven distinct appeals to the Supreme Court.
4. The main order in the principal case was made by Clarke J. in December 2008, and a written judgment running to 170 pages was delivered the following March. This decision is likely to be a little shorter. Clarke J's decision was by way of a ruling on First Active plc's application for a non-suit, and Jackson's application for a dismiss. Both applications were successful and it is against such rulings that the principal appeal has been brought to the Supreme Court.
5. In the same case, there were three other (interlocutory) rulings of various dates which are also the subject of separate appeals.
6. Also, there are appeals pending in three other cases between these parties and involving other parties, connected and otherwise.
7. In all, there are seven appeals.
8. The Supreme Court has remitted these cases to the Master for the purpose of determining a reasonable approximation of the party and party costs which would be awarded to the respondents if the appeals fail, and to fix the amount of security for same. It is necessarily a rough and ready exercise, but it is not a wholly unconstrained discretion. It should simulate the rigour which the rules and case law precedents now require of the Taxing Master.
9. The Taxing Master must evaluate the actual work done and outlays incurred and then add, if appropriate, an uplift in the solicitor's instructions fee for the "intangible" factors listed in O. 99, r. 37.
10. Should I guesstimate party and party costs for each appeal separately or view them as a whole? The Supreme Court orders are standalone for each appeal, but as against that, it is the one judgment that is the basis for such orders, and the judicial comments appear to apply collectively. The issues in the four appeals in the principal case (High Court [2003/9018P]; Supreme Court appeals [178/08, 250/10, 251/10 and 252/10]) are clearly part and parcel of one claim. If the plaintiffs were to succeed in overturning the non-suit/dismiss, they would also be anxious (anticipating a rehearing of the full case) to press for favourable findings in the other appeals in this action. And, if not successful on the main appeal, it seems pointless to fix security for each element separately. Happily, the ancillary issues in these three appeals are not of such materiality or complexity that significant discounts should be allowed for the eventuality that all four appeals would be proceeding in tandem. In fact, the ancillary issues are mostly of the sort that competent Junior Counsel would be fully able to argue, involving considerations of no particular complexity or requiring much preparation or research.
11. The other three distinct High Court actions, with some parties in common and some not, must be treated as separate for the purposes of this application.
12. This litigation arises out of the plaintiffs' assertion that the first named defendant's withdrawal of funding for the plaintiffs' property development and construction business in 2003 was in breach of the plaintiffs' understanding of the structure and nature of the overall facility which had been agreed on 15 th August 2002. They plead breach of contract, misrepresentation, deceit, estoppel (and so forth) on the part of First Active plc.
13. As against the second defendant, Jackson, who was appointed receiver by First Active when the facilities were called in, the plaintiffs make allegations of torts which caused loss in and about the management of the security assets.
14. After hearing evidence over a period of sixty-six days, and at the conclusion of the plaintiffs' case, the first defendant applied for a non-suit direction and the second defendant sought a dismiss on the merits. Having to deal with these two conceptually different applications on the basis of the same evidence given and materials opened to him presented the trial judge (Clarke J.) with a challenge: he had to decide the first defendant's application by determining whether the plaintiffs had made out a prima facie case, and the second defendant's application analysing the same material as before, by reference to whether the plaintiffs had proved their allegations on the balance of probabilities. Clearly, a prima facie threshold is much lower than the probability test. That is to state the obvious, legally speaking. It is a little more difficult to tease out, in practical terms, by what yardstick the probative quality of individual pieces of the evidential jigsaw are to be judged if they are to be enough to contribute to satisfying the prima facie threshold, but not weighty enough to be accepted as credible on the balance of probabilities. It is an exquisite challenge for a judge to avoid pre-judging the prima facie test by becoming distracted by his assessment of the probative quality of the evidence adduced (unless even the prima facie "evidence" is not probative at all or is simply missing altogether).
15. In this instance, the balance of probability assessment concerned the plaintiffs' allegation about the second defendant's actions and to that extent it was possible to ringfence the dismiss application, but since both defendants were successful in their respective applications, and both applications were heard together, the Supreme Court will need to check that no contamination occurred infecting the prima facie test in respect of the first defendant's non-suit application. The plaintiffs are appealing both such rulings.
16. The Taxing Master faces a similar duality. In litigation, the liability for and quantum of costs which should be ordered are ancillary to the judgment on the main issue, and are a matter of justice between the parties. The solicitor and client bill is not: it is a matter of private contract. On the basis of the same solicitor's file, the Taxing Master is sometimes asked by the Court to determine the quantum of a successful party's incurred costs which, in justice, should be paid over by the unsuccessful party, and sometimes he is asked by the solicitor and/or his client to determine how much of a solicitor's bill invoiced to his own client should be paid by the client to his solicitor. The first of these exercises is known as taxation on a party and party basis, and the second as solicitor and client taxation. And so we may find that he may determine that the unsuccessful party is liable for, say, 70% of his opponent's costs, but the winning party may be liable to his own solicitor for, say, 90% of the same bill. That client, in short, may recover only 70% from his opponent (not a full indemnity) and have to himself make up the difference of 20% out of his own pocket.
17. The amount of the winning party's costs which the losing party ought to be liable for is, naturally, a matter of justice which the court must determine. As a matter of justice, it must surely be beyond dispute that such costs should, in a perfect world, work out at no more and no less than the marketplace price for the services invoiced. Party and party costs cannot be a sum which is in excess of the price which competitive market supply and demand curves would determine. If a solicitor wishes to bill his own client for a figure which is over the odds, he may do so, but the liability of the losing party should be fixed by marketplace objectivity and not otherwise. Solicitor and client fees are another matter altogether. They have little marketplace reality. In the absence of any clear marketplace data, the difficulty in working out what the objective party and party price should be can sometimes lead to the use of the solicitor and client cost figures as the starting point, and this contaminates the data and corrupts the exercise.
18. The Taxing Master is the Court's own official to whom the Court can refer the detailed work of "taxation" of the bill. The Court supervises his work. Fortunately for the Taxing Master, various judicial precedents and specific Rules of Court chart for him the quite distinct tests which, applied to the material on file before him, produce the...
To continue reading
Request your trial