Sheehan (infant) -v- Corr, [2015] IEHC 99 (2015)

Docket Number:2009 10344 P
Party Name:Sheehan (infant), Corr
 
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THE HIGH COURT[2009 No. 10344 P]

BETWEEN

ISABELLE SHEEHAN (AN INFANT) SUING BY HER MOTHER AND NEXT FRIEND, CATHERINE SHEEHANPLAINTIFFAND

DAVID CORRDEFENDANT

JUDGMENT of Kearns P. delivered on the 27th day of February, 2015

This is an application brought pursuant to Order 99, rule 38 (3) to review the rulings of the Taxing Master as regards the solicitor’s instruction fee in this medical negligence case.

The instruction fee claimed was €485,000. A sum of €250,000 was offered and ultimately the sum of €276,000 was allowed on taxation.

It is claimed on behalf of the appellant that the Taxing Master in this case was guilty of a number of errors as follows:-

(a) He failed to appreciate the complexity of the case and the novelty or rarity of the particular medical condition which arose;

(b) He failed to allow for the presence in court throughout the hearing of two senior solicitors, having regard to the high level of responsibility being carried in the particular case, in circumstances where the defendants also had two senior solicitors in attendance;

(c) He failed to have regard to the amount of time devoted to the case by the solicitors;

(d) He adopted the methodology for arriving at his final figure from that offered by the defendants instead of carrying out his own assessment. In this regard it is alleged that he did not properly explain his approach and that his reasoning was “opaque”.

(e) He failed to have any or any adequate regard to comparators.

The defendants for their part maintain that the Taxing Master gave very detailed and careful consideration to each and every point raised during the course of submissions and hearings in relation to the taxation; gave full and adequate reasons; had due regard to comparators, and ultimately arrived at a figure that was fair and appropriate and in line with figures accepted by the particular solicitor in similar medical negligence cases thereafter.

The original taxation of the plaintiff’s costs commenced on the 11th September, 2012 and continued on the following day when the hearing was concluded. The Taxing Master delivered a written ruling on the 7th November, 2012 (“the Taxation Ruling”).

The plaintiff raised objections dated the 27th November, 2012 relating to the sums allowed in respect of the brief and refresher fees for counsel and the solicitor’s instructions fee. The objections were heard on the 13th September, 2013, the 3rd October, 2013 and the 24th January, 2014 at which point the Taxing Master reserved his ruling. There was a further brief hearing on the 27th March, 2014 and, ultimately, the Taxing Master gave his ruling on the objections on the 29th May, 2014 (“the Objections Ruling”).

A further point emerged during the course of the hearing before this Court, namely, the extent to which the Taxing Master is entitled to take into account in the course of taxation the downturn in the Irish economy which has seen significant reductions in remuneration and fees across a spectrum of employments, including professional services. The Court was invited to give some directions as to whether there should be a methodology to be followed by the Taxing Master in assessing the amount of any appropriate reduction, rather than by the means of some arbitrary reduction.

THE UNDERLYING PROCEEDINGS

The plenary summons in this case issued on the 17th November, 2009. In the proceedings the plaintiff claimed damages against the defendant, a consultant obstetrician, who was carrying out private practice from the Bon Secours Hospital in Cork. It was alleged that the defendant was guilty of negligence in the management of the ante-natal care of the plaintiff’s mother. During the course of her pregnancy her general practitioner carried out certain tests, one of which was a blood test for antibodies. On the 17th May, 2004 the general practitioner wrote to the defendant confirming that the plaintiff’s mother’s blood contained antibodies against Rh (e) and that the strength of the antibodies was 1/128. Further tests were carried out including a test on the 28th October, 2004 which revealed an alarming rise in the titre at 1/2048, the report also noting Rh (c) antibodies in low titre.

Although notified of these developments, the defendant did not act as he should have in monitoring the levels of antibodies in the plaintiff’s mother’s blood and in failing in various other respects to arrange for proper research of the medical condition in question or for appropriate foetal blood transfusion. As a result, the plaintiff was born in poor condition, ultimately developing cerebral palsy. The plaintiff has been left with profound disability.

A defence was delivered on the 5th November, 2010 wherein negligence was admitted. However, causation remained in issue and thus remained a significant obstacle for the plaintiff to overcome.

The case was set down for hearing on the 18th November, 2010. On the 5th September, 2011 the defendants conceded the issue of causation and an amended defence was delivered on the 12th October, 2011 which rendered the hearing an assessment hearing only.

The briefs for counsel and the booklets for the Court and the defendants were prepared prior to the admission of liability and comprised over 20 bankers’ boxes of documentation.

The trial commenced in the High Court (O’Neill J.) on the 19th October, 2011 and ran for five days in total before being settled on an interim basis pending the enactment of legislation governing periodic payment orders.

The amount of the interim settlement was €1.9million. The Court during the course of this hearing was told that the full capital value of the claim, had it been dealt with on that basis, would have been in the order of €8 million.

The week before the trial there were unsuccessful lengthy settlement negotiations, and since the settlement in October 2011 there has been a further hearing before the High Court which provided for a further interim payment after another protracted hearing. The Court is not presently concerned with any aspect of costs in relation to that further hearing which may, unfortunately, be the subject matter of a further taxation process in the absence of any agreement. The Court was given to understand that follow-up applications to court in respect of interim settlements have not yet given rise to taxation reviews by the court.

RELEVANT LEGAL PROVISIONS

Under Order 99, rule 38 (3) of the Rules of the Superior Courts, a party who is dissatisfied with the decision of the Taxing Master as to any items which have been objected to within the taxation process may apply to the court for an order to review the taxation as to the disputed items and the court may thereupon make such order as may seem just.

Section 27(3) of the Courts and Court Officers Act 1995 (“the 1995 Act”) also makes provision for the review of the objections ruling.

In Superquinn v. Bray UDC & Ors. [2000] IEHC 115, this Court held that s. 27(3) of the 1995 Act introduced a higher onus upon a party challenging the ruling of a taxing master than was the position prior to the enactment of that section. The section provides in relevant part:-

“The High Court may review a decision of the taxing master of the High Court … made in the exercise of his or her powers under this section, to allow or disallow any costs, charges, fees or expenses provided only that the High Court is satisfied that the taxing master … has erred as to the amount of the allowance or disallowance so that the decision of the taxing master or the county registrar is unjust.”

There must therefore be an error in amount and an injustice arsing in consequence. In Bloomer v. The Law Society of Ireland (No. 2) [2000] 1 I.R. 383 Geoghegan J. further held that in considering whether the taxing master erred, the court must see whether in arriving at his decision he had regard or excessive regard to some factor which he either should not have had any regard to or to which he should have had much less regard. The court then had to consider whether there was some significant factor to which the taxing master ought to have had regard and to which either he had no regard at all or insufficient regard. Geoghegan J. described these errors as errors of principle. He also concluded that the court must also consider whether the taxing master has fallen into error in either law or jurisdiction. Once such an error is established, the court then has to address the second question which is whether the taxation was unjust, something that would be determined by the amount. If after falling into error, the Taxing Master in fact arrives at the correct figure or at figures within a range which it might reasonably have been open to him to have arrived at, the court should not interfere.

This Court has previously identified a differential in the region of 25% or thereabouts as indicative of injustice (by way of analogy to the Supreme Court’s approach in determining whether an award of damages was unjust), but other judges have hesitated about adopting this pragmatic formula, preferring that the question of what is just or unjust be viewed on a case by case basis since different factors may be at play (see observations of Peart J. in Quinn v. South Eastern Health Board [2005] IEHC 399).

THE SOLICITOR’S INSTRUCTION FEE

Section 27 of the 1995 Act sets out the approach to be adopted in assessing a solicitor’s instructions fee as follows:-

(1) On a taxation of costs as between party and party 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 … a solicitor … and may tax, assess and determine the value of such work done or service rendered or provided in connection with the measurement, allowance or disallowance of any costs, charges, fees or expenses included in a bill of costs.

(2) On a taxation of costs as between party and party by a Taxing Master of the High court...

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