Re Greene & Sons and Dublin Corporation

• Jurisdiction: Ireland
• Judgment Date: 06 February 1940
• Date: 06 February 1940
• Court: Statutory Tribunal (Ireland)

In re Greene & Sons and Dublin Corporation

In the Matter of the Tribunals of Inquiry (Evidence) Act, 1921, and in the Matter of a Tribunal of Inquiry as to the cause of the fire which occurred at No. 164 Pearse Street

Dublin

ANNIE MALONE, on behalf of herself and ROBERT MALONE, deceased, and the dependants of PETER McARDLE

deceased

ROGER GREENE & SONS, Solicitors, and DUBLIN CORPORATION

Practice - Costs - Tribunal set up by Minister for Local Government to inquire into cause of a fire and explosions - Agreement by one party to pay the taxed costs, as between solicitor and client, of the other party - Construction of Agreement - Costs of shorthand writer's notes of evidence at Inquiry - Or. LXI and Or. LXV, rr. 61 to 63, Rules of the Supreme Court (Ir.), 1905, inapplicable - Costs of copy of transcript for use of counsel - Portion of such costs disallowed under Or. LXV, r. 65 (29) as incurred improvidently - Costs of reading transcript by solicitor - Whether charges so unusual as to require prior assent of party to be charged - Or. LXV, r. 20 - Jurisdiction of Taxing Master to reduce a solicitor and client bill because payable by a third party - Discretion of Taxing Master - How, under existing code, costs of such an Inquiry should be taxed - Rules of the Supreme Court (Ir.),1905, Or. LXV, rr. 19, 20, 24, 65, sub-rr. (28), (29) (37), (38) -Rules of the High Court and Supreme Court, 1926, Or. XXVIII, rr. 3, 4;Appendix II (Part I), items 119, 143 and 144 - Local Government (Dublin) Act, 1930 (No. 27 of 1930) - Tribunals of Inquiry (Evidence) Act, 1921 (11 Geo. 5, c. 7), s. 1.

The Minister for Local Government ordered a Tribunal of Inquiry to be set up to inquire into the cause of a fire accompanied by explosions which occurred in Dublin. Three firemen in the employment of the Corporation of Dublin had lost their lives in fighting the fire. The Inquiry was very protracted (about 80 witnesses being examined), and the evidence was taken by a stenographer. The Corporation of Dublin, with the assent of the Minister, gave an undertaking to pay the taxed costs of the solicitors representing the dependants of two of the deceased firemen at the Inquiry, the taxation to be on the basis of solicitor and client costs. The Taxing Master taxed the costs on the principle that they were solicitor and client costs payable by a third party, and he disallowed charges for perusing, and copying for counsel, the transcript of the evidence given at the Inquiry on the ground that he was not satisfied that these charges were for work done which was necessary and proper, and not so unusual as to necessitate the prior authority of the party chargeable. On a motion to review the taxation:

Held that the effect, of the Corporation's undertaking was to provide for payment, by them of the costs of the deceased firemen's dependants, as between solicitor and client, after a taxation. which, though not concerned with litigation, should be carried through in the same way, mutatis mutandis, as if the bill were a solicitor and client bill in a common law proceeding in the High Court, though some of the Rules of Court governing such a taxation might be inappropriate and others inapplicable without adaptation, there being no other code of taxation which the parties could possibly have contemplated as being applicable.

Held also that the costs of a copy for senior counscl with a carbon copy for junior counsel of considerable portions of the transcript of the evidence, also the costs of perusing the transcript by the solicitors for the dependants of the two deceased firemen were properly incurred by them to enable them to assist the Tribunal and to protect the rights of their clients, and that, having regard to Or. LXV, r. 65 (28) and (29) of the Rules of 1905 there was no principle upon which these charges could be ruled out on taxation either as between solicitor and client or as between party and party, if an appropriate item of allowance appeared in the statutory Appendix.

Held further, as regards the Taxing Master's view, based on Or LXV, r. 20, of the Rules of 1905, that the charges for perusing and copying for counsel the transcript of the evidence were so unusual as to require the prior assent of the party to be charged, it was unsustainable, as r. 20 was inapplicable, the party not being the client but a third party, and the circumstances of the case were unusual, and, in any event, the assent of the party chargeable (the Dublin Corporation) might reasonably be assumed.

As to the Taxing Master's authority to reduce a solicitor and client bill because it was to be paid by a third party, it was doubtful whether any such practice survived r. 17 of Or. LXV of the Rules of 1893 (reproduced as r. 19 of Or. LXV of the Rules of 1905) which purported to make a new and exclusive code for costs, with a special Appendix for fees, now superseded by Appendix II (Part I) of the Rules of the High Court and Supreme Court, 1926, prescribed by Or. XXVIII, rr. 3 and 4 thereof, and, if the Taxing Master acted on an established practice in favour of a third party, he thereby unduly limited the wide discretion given to him by the Rules (Or. LXV, r. 65, sub-rr. 37 and 38).

As to the question of practice, viz., as to how precisely under the present code, if at all, the solicitors for the deceased firemen's dependants could tax the charges which had been held (as above) to have been properly incurred: the copy and carbon copy for counsel of the requisite portions of the transcript, supplied to counsel as supplementary briefs were clearly within item 119 of Appendix II (Part I) of the Rules of 1926, as briefs of proper documents; as to perusing the transcript, the perusals could not tax as such, but the Taxing Master was requested to consider whether or not to make a further or special allowance under Or. LXV, r. 24, of the Rules of 1905 for the work actually done in reading through the transcript and the remaining disputed items were remitted to be re-taxed on the principles above explained.

Motion on behalf of Roger Greene & Sons, solicitors, to review the taxation of their costs in respect of the representation of the dependants of two deceased firemen at an Inquiry into the cause of a fire accompanied by explosions which occurred at 164 Pearse Street, Dublin.

The Report of the Taxing Master was as follows:—

"By order of the Minister for Local Government and Public Health, dated the 5th day of January, 1937, a Tribunal of Inquiry was set up to inquire into the cause of a fire at 164 Pearse Street, Dublin, on the night of the 5th day of October, 1936, in which fireman Malone and fireman Mcardle lost their lives.

The bill of costs, the subject of the present proceedings, is in respect of the representation of the dependants of the deceased firemen before the Tribunal of Inquiry.

The costs were first presented to me for taxation under a requisition to tax signed by the said dependants, in which Mr. I. J. Rice, Law Agent of the Dublin Corporation, was nominated to attend. The Corporation Law Agent objected to the taxation proceeding on that basis and ultimately by arrangement between the parties a fresh requisition to tax sealed by the Dublin Corporation was substituted and the taxation proceeded.

It would appear that the nature and amount of the costs of the dependants that the Dublin Corporation were prepared to pay...