Murphy v Corporation of Dublin
| Jurisdiction | Ireland |
| Judge | BUTLER J. |
| Judgment Date | 31 July 1979 |
| Neutral Citation | 1978 WJSC-HC 3572 |
| Docket Number | No. 28 MCA./1979 |
| Court | High Court |
| Date | 31 July 1979 |
1978 WJSC-HC 3572
This is a motion to review the taxation of a Bill of Costs brought pursuant to Order 99 r. 38 of the Rules of the Superior Courts. The costs are the costs of and incidental to a reference to arbitration to determine the compensation to be paid to the claimant for lands at Finglas which the claimant claimed in fee simple and which were compulsorily acquired by Dublin Corporation. The arbitration was the end of the line in a determined effort by the claimant to resist the compulsory Purchase Order. For the purpose of the present notice it is sufficient to note that previous litigation had resulted in two Notices to Treat dated respectively 12th March 1973 and 2nd May 1974 having been served in relation to the acquisition and that a question arose at the arbitration as to which of these two dates was the relevant date of the assessment of compensation. This matter was subsequently resolved by further litigation but it complicated the arbitration proceedings in that it required submissions to the arbitrator on the question of which was the correct date and in the result, when the arbitrator decided to proceed on alternative bases, it required the direction and leading of evidence to support each of the dates and a consideration of similar alternatives adduced by the Corporation and cross-examination of the Corporations witnesses relative to both dates. These alternatives also meant that the initial award of the Arbitrator was an interim one only and was followed by a final award.
The interim award is dated the 22nd March 1975 and it is it which (as is usual in like cases) contains the award of costs. It is in the following terms
"I do find award and direct that the Acquiring Authority do pay to the Claimant his costs of and incidental to the reference to Arbitration and the taking up of the award, which costs, in default of agreement are to be taxed on a Solicitor and Client basis by a Taxing Master of the High Court, and I do certify that it was proper for the Claimant to engage the Counsel engaged by him and to employ the expert witnesses employed by him to assist in the presentation of his claim at the Arbitration hearings."
The lands comprised over 180 acres and the compensation amounted to almost 1frac12; million pounds.
The objections to the taxation and this motion relate to the disallowance or reduction of several items. These items fall under four heads, namely
Items 3,4,5,6 which relate to what is described in the Bill as a Case for Proofs and to the fees paid to Senior Counsel in respect of their advice thereon. These were all disallowed.
Item 7 is the Instructions Fee drawn at £20,000 and reduced to £4,000
Items 15 & 16 relate to fees charged by Counsel for four consultations.
The first and last group of items may be quickly disposed of. It is clear from the opinion furnished by Counsel (a) that a case had been submitted to them, (b) that it was not a case for proofs but a case to advise on the difficulties of the arbitration and the attitude to be adopted because of the two Notices to Treat, (c) that it related to the conduct of the arbitration, (d) that the case was very carefully considered by Counsel and the opinion given was very exhaustively researched and detailed - it runs to five closely-typed foolscap pages. In the light of the Counsel for the Corporation, very properly in my view, acknowledges that the description of the items as a Case for Proofs in a more misnoner; that it was an opinion properly sought and that it was weighty and he does not now object to these items being allowed in full. I direct accordingly that items 3,4,5 & 6 be allowed in full.
Similarly with regard to the four consultations. On any view this was a very serious and complicated arbitration. It was disjointed having been held on 6th December 1974; 27th June 1975; 31st January 1975 and 7th April 1975. It seems entirely proper that there should have been a consultation on each of these four days. The objection was taken because there were no consultation dockets. Counsel for the Corporation again very properly does not press the objection and accordingly I direct that items 15 and 16 be allowed in full.
The gravamen of the case is the reduction of the Instructions Fee and of Counsel's Brief Fees and Refresher Fees. I shall deal with each of these separately but as both depend to some extent on what Parke, J. in Irish Trust Bank Limited -v- Central Bank of Ireland conveniently refers to as "the Taxing Master's view of the case" I shall first make some observations on that aspect of the matter.
The Taxing Master acknowledges that this arbitration was unusual in that it was complicated by the service of two Notices to Treat and also by the interim award followed by the final award. He states at page 7 of his report "The money concerend is indeed vast for I was informed that the total compensation payable to the Claimant was not less than £1,486,500." On the other hand he accepted the view of the solicitor for the Corporation that "the case was one ofvalue only i.e. the value of the land being acquired" (page 8). He was further "impressed" by the submission that "this work as to determining value was a matter for expert valuers engaged by the Claimant and that success or otherwise of the Claimant's case rested on their evidence". (page 8/9;). He was also "impressed" by the submission that "even allowing for the vast sum of money in this case the issue was a direct and straightforward one" (page 9) without the complications of disruption of business, consequential loss for disturbances or complicated business accounts. While acknowledging that a great responsibility was placed on the Solicitor in the conduct of the case his view was that the Solicitor "could do no better nor be more than a conduct between Counsel on the one hand and his expert valuers on the other". (page 9). He goes on to say: "It does seem to me, however, that the main burden in this case fell upon the expert valuers to convince the Arbitrator as to the value of the lands being compulsorily acquired to endeavour to obtain the best price for the claimant" (page 10). He continues on the same page, "The main claim and justification for a truly substantial Instruction Fee therefore was not for work done or required to be done but for the responsibility having regard to the vast monies involved." His view of the case is further indicated when at page 11 when listing the matters to which he had special regard in exercising his discretion as to the proper Instructions Fee he includes;
(e) The fact that the only issues to be determined was the value of the lands
(g) The fact that the Bill of Costs only reveals two witnesses for the claimant, i.e. two valuers.
Again at page 21 he says:
"may I, with respect, point out to this Honourable Court that the only issue in this case is that of the value of the lands and again this depended in my view on the vital evidence of the expert valuers. The Bill of Costs shows only two valuers both experienced valuers in their field."
In my opinion this view of the case is seriously deficient. While it is true that the case was one of value only that valuation was complicated by factors which were brought to the attention of the Taxing Master but are in no way acknowledged by him. This 186 acres in four lots was subject to no less than three different zonings in the Corporation's Development plan, namely residential, business and open space. Apart from the fact that each zoned area had to be valued in accordance with its permitted use and by reference to two separate dates, it is common knowledge that there are changes and adjustments in zonings and that it is proper to direct an arbitrator's attention to the possibility and, if occasion warrants it, the probability of such re-zoning. That these matters exercised the attention of the claimant's solicitor and counsel is evident from the recitals in the preamble to the...
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