Ormond v Ireland
|Mr. Justice Barron
|01 January 1988
|1987 WJSC-HC 2117
|01 January 1988
1987 WJSC-HC 2117
THE HIGH COURT
OPPENSHAW V WHITEHEAD
METROPOLITAN COAL CONSUMERS ASSOC, IN RE 45 CH 606
RSC O.99 r37(18)
BOGUSLAWSKI V GDYNIA AMERYKA LINIE
RSC O.99 r5(2)
RSC O.99 r37(26)
RSC O.99 r37(3)
RSC O.99 r37(5)
RSC O.99 r37(6)
Taxation - Multiple motions - Similar actions - Defaults of defences - Motions for judgments - Solicitor's instructions fees and counsel's brief fees in issue - Identical factors governed each of 79 motions in 79 actions - The same solicitor and counsel acted for each of the plaintiffs in 79 actions in which damages were claimed from the same defendants for losses incurred as a result of the Stardust fire - The solicitor instructed counsel to settle a notice of motion for judgment in default of defence, and to give advice about the necessary proofs - By agreements of the parties it was decided that the motions should be struck out, that the defendants should be allowed three weeks in which to deliver their defences, and that the plaintiffs should be allowed their costs of the motions, and an order to that effect was made by consent in each action - The Taxing Master allowed the sum of #12.50 (instead of the usual fee of #42) as the instruction fee for each motion for judgment, and he allowed a brief fee of #33.50 (being the Bar Council scale fee) for one of the said motions and a brief fee of #3.15 for each of the remaining 78 motions - The plaintiffs appealed against the decisions of the Taxing Master - Held that the costs of the motions should be taxed in accordance with the orders made - Held, in dismissing the appeals, that the solicitor's remuneration should reflect the amount of work performed by him in relation to a particular item and that, accordingly, the Taxing Master had acted correctly in taking into account the repetitive nature of the work involved in preparing instructions in respect of the second and subsequent motions - Held that, in the circumstances, payment of a brief fee at the scale rate in respect of each of the 79 briefs could not be regarded as outlay reasonably incurred by a careful and prudent solicitor - ~Boguslawski v. Gdynia Ameryka Linie~ considered - Rules of the Superior Courts, 1986, order 99, r.37 - (1982/5628 P - Barron J. -
|Ormond v. Ireland|
Judgment by Mr. Justice Barron delivered the 29 day of May 1987.
This is an Appeal from the decision of the Taxing Master upon a taxation of costs of 79 Motions for judgment in default of defence. Each Motion was brought in an action for damages arising out of the Stardust disaster. Each action was brought against a number of Defendants and each Plaintiff was represented by the same Solicitors.
The circumstances in which the Motions were brought and the relevant facts are as follows:
The Summons and Statement of Claim were issued and delivered respectively in each case. Particulars were sought by and given to each of the Defendants other than the State. After a period of eighteen months and at a time when defences were expected from such other Defendants there had been no move by the State other than to enter appearances. The Solicitor dealing with the matter on behalf of the Plaintiffs contacted the Office of the Chief State Solicitor to ascertain what steps the State intended to take. It was suggested to him that he should bring Motions for judgment in default of defence.
Following upon this, Counsel was instructed on behalf of the Plaintiffs. He settled a Notice of Motion and gave advices as to the necessary proofs. On the Thursday prior to the date for the hearing of the Motions it was agreed that an Order should be made in each case to strike out the Motion, to allow the State three weeks to deliver its defence, and to allow the Plaintiffs the costs of the Motion. On the following Monday, Counsel on behalf of the Plaintiffs informed the Court of this agreement and Orders were made in each case in accordance with that agreement. The briefs in each case were prepared for Counsel and although in Court were never handed to him. Counsel has never marked any fee in respect of these Motions whether on the back sheets of each brief or by a separate fee note. He did indicate in writing to his Solicitor that he had "marked fees in each case in accordance with the scale of fees as fixed by the General Council of the Bar", and that he would forward a formal fee note, which was never done.
The issues which now arise for determination relate to the appropriate fees for the Plaintiffs' Solicitor for instructions for hearing of the Motions and for Counsel's fee on brief on such Motions. Issues also arose in relation to the costs of Affidavits of Service of the Notice of Motion and the Solicitor's fee for attending Court. At the hearing of the Appeal Counsel for the Plaintiffs accepted the taxation of the relevant items relating to these issues, and did not pursue the appeal in relation to them.
The Taxing Master allowed the sum of £12.50 as an Instructions Fee in each case and a fee of £33.50 to Counsel on one case, being the appropriate scale fee, and a fee of £3.15 in each of the other cases. The Plaintiffs have appealed these decisions.
Counsel for the Defendant submits that only such costs should be allowed as are necessary or proper for the attainment of justice and that in the present instance this aim would have been met by bringing only one Motion. He relied upon Order 99 Rule 37(18) of the Rules of the Superior Court 1986 which is as follows:
"On every taxation the Taxing Master shall allow all such costs, charges and expenses as shall appear to him to have been necessary or proper for the attainment of justice or for enforcing or defending the rights of any party, but, save as against the party who incurred the same, no costs shall be allowed which appear to the Taxing Master to have incurred or increased through over-caution, negligence or mistake, or by payment of special fees to counsel or special charges or expenses to witnesses or other persons or by other unusual expenses".
I accept his general proposition, but his approach over-looks the fact that his client agreed to the making of 79 Orders for costs.
He further submits that where the same work is done for more than one client the Solicitor may nevertheless be remunerated only once. He referred to Order 99 Rule 37(3), 37(5) and 37(6) which deals with the case of Solicitors acting for more than one Defendant.
Counsel for the Plaintiff submits that each Order should be taxed as if it were a separate and distinct matter and that regard should not be had to the fact that the same Solicitor was acting in all the cases. He referred to Oppenshaw .v. Whitehead ...
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