Sheehan v Corr

• Jurisdiction: Ireland
• Judge: Mr Justice Cregan
• Judgment Date: 10 June 2016
• Neutral Citation: [2016] IECA 168
• Court: Court of Appeal (Ireland)
• Docket Number: Appeal No. 2015 141
• Date: 10 June 2016

[2016] IECA 168

THE COURT OF APPEAL

Cregan J.

Appeal No. 2015 141

Peart J.

Irvine J.

Cregan J.

BETWEEN

ISABELLE SHEEHAN

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

PLAINTIFF/APPELLANT

AND

DAVID CORR

DEFENDANT/RESPONDENT

Negligence – Damages – Taxation – Appellant seeking a review of an Objections Ruling – Whether the methodology used by the Taxing Master was wrong in law

Facts: The infant appellant, Ms Sheehan, suffered catastrophic injuries as a result of the admitted negligence of the respondent, Dr Corr, and ultimately developed cerebral palsy. An assessment of damages in the High Court eventually resulted in a settlement for the appellant of ?1.9m on an interim basis (and a full capital value of approximately ?8m). Thereafter the appellant?s solicitor?s costs went to taxation.?On 27th November, 2012 the appellant?s solicitors raised Objections in relation to the sums allowed in respect of the solicitor?s instruction fee and also in respect of the brief and refresher fees for counsel. The Taxing Master gave his ruling on the Objections on 29th May, 2014. By notice of motion dated 5th June, 2014 the appellant?s solicitors sought to review the Objections Ruling on the grounds that the Taxing Master was in error in arriving at his decision. On 27th February, 2015 Kearns P dismissed the review and granted costs to the respondent. The appellant appealed to the Court of Appeal against Kearns P?s decision on the grounds that Kearns P erred in failing to regard: 1) the Taxing Master?s approach to time as an error that resulted in injustice within the meaning of s. 27(3) of the Courts and Court Officers Act 1995; 2) the Taxing Master?s findings on novelty, complexity, skill, specialised knowledge and responsibility (as intangibles) as an error that resulted in injustice within the meaning of s. 27(3); 3) the Taxing Master?s findings on alleged ?super profits? earned by the appellant?s solicitors in unconnected cases as an error that resulted in injustice within the meaning of s. 27(3); 4) the Taxing Master?s disallowance of two senior solicitors at the hearing as an error resulting in injustice; 5) the finding of the Taxing Master that there was a difference in overheads between Dublin law firms and the appellant solicitor?s firm in Wicklow as an error leading to injustice within the meaning of s. 27(3); 6) the Taxing Master?s approach to comparators as an error that resulted in injustice within the meaning of s. 27(3); 7) the Taxing Master?s approach to the economic downturn as an error resulting in injustice within the meaning of s. 27(3).

Held by Cregan J that the Taxing Master and Kearns P did not give sufficient regard to the amount of time involved, which was an error of principle and of law which resulted in an injustice within the meaning of s. 27(3). Cregan J held that the methodology used by the Taxing Master was wrong in law in that he took intangibles into account at the very start of his analysis instead of at the end. Cregan J held that the issue of ?super – profits? was clearly irrelevant was not a factor which a Taxing Master should take into account in an assessment of a solicitor?s instruction fee in a case such as this. Cregan J held that the cost of two senior solicitors should be recovered on a party and party basis in taxation. Cregan J concluded that the error made by the Taxing Master in that regard was such as to amount to an injustice within the meaning of s. 27(3). Cregan J was satisfied that the issue of ?overheads? was not an error of the Taxing Master of such a nature as to result in an injustice to the appellant?s solicitors on the facts of this case. Having considered the Taxing Master?s analysis of the alleged comparators in this case and having considered the judgement of Kearns P, Cregan J was of the view that no error had been committed by the Taxing Master in his analysis of the issue of comparators. Cregan J held that insofar as the Taxing Master assessed an overall instruction fee and then reduced it because of the economic downturn, he made an error of principle as such an approach failed to apply the correct methodology; the Taxing Master should take economic circumstances into account at all levels of his assessment of the fee.

Cregan J held that he would allow the appeal and remit the matter to the Taxing Master for a renewed assessment of the appropriate instruction fee.

Appeal allowed.

JUDGMENT of Mr Justice Cregan delivered on 10th day of June, 2016

INTRODUCTION

1 The issue in this appeal is the evaluation of a solicitor's instruction fee for work carried out for the plaintiff/ appellant in her medical negligence proceedings against the defendant/ respondent. In the Bill of Costs the appellant's solicitor sought an instruction fee of ?485,000. The respondent's cost accountants submitted that the appropriate fee should be ?250,000. Ultimately the Taxing Master allowed a sum of ?276,000.00.

2 This was a case in which the infant plaintiff suffered catastrophic injuries as a result of the defendant's admitted negligence and ultimately developed cerebral palsy. The case ran for five days in the High Court on an assessment of damages and eventually resulted in a settlement for the plaintiff of ?1.9m on an interim basis (and a full capital value of approximately ?8m).

3 Thereafter the plaintiff's solicitor's costs went to taxation. The first taxation process took two days; the objections hearing took four days; the High Court review hearing took four days and this Court of Appeal hearing took two days. Thus, whereas a hearing of an assessment for catastrophic injuries only took five days, the hearings on the assessment of solicitors' costs have taken twelve days. It is hard to avoid the conclusion that there must be something wrong with a taxation process that would take so long to resolve such a dispute.

4 It is difficult to understand why this has happened. However, having considered the lengthy submissions by both sides, I am of the view that the problems have been caused by the failure of the appellant's solicitors to keep a proper record of their hours spent on this case, by the failure of their cost accountants to submit a proper Bill of Costs in conformity with the Rules, by the failure of the Taxing Master to accept the appellant's solicitors' offer to submit a reconstruction of the hours they worked and by the failure of the Taxing Master to apply the Rules of the Superior Courts, as interpreted by the courts, in the proper way, to the facts of this case.

THE UNDERLYING PROCEEDINGS

5 In these proceedings, the plaintiff (suing by her mother and next friend, Catherine Sheehan) claimed damages against the respondent, a consultant obstetrician, carrying out private practice from the Bon Secours Hospital, Cork. These medical negligence proceedings alleged that the defendant was guilty of negligence in the management of the antenatal care of the plaintiff's mother. During the course of the plaintiff's mother's pregnancy, her general practitioner carried out certain tests, one of which was a blood test for certain antibodies. On 17th May, 2004, the general practitioner wrote to the defendant confirming that the plaintiff's mother's blood contained antibodies against RH(e). Further tests were carried out including a test on 28th October, 2004, which showed an alarming rise in these antibodies and also noting RH(c) antibodies.

6 However, although the defendant was notified of these matters, he did not act as he should have done in monitoring the levels of antibodies in the plaintiff's mother's blood and in arranging for an appropriate monitoring of the medical condition in question or arranging appropriate foetal blood transfusions. This set in motion a sequence of failures which resulted in the plaintiff suffering catastrophic birth injuries and ultimately developing cerebral palsy. The plaintiff has, therefore, been left with profound disability.

7 The personal injury summons in this case issued on 17th November, 2009. The personal injuries defence was delivered on 5th November, 2010, by solicitors for the defendant/respondent. Whilst the defence made a number of admissions of wrongdoing, the preliminary paragraphs of the defence put causation fully in issue. Moreover, the respondent's solicitors had previously confirmed by, letter dated 5th May, 2010, that they had commissioned expert obstetric reports and that they would not be in a position to deliver a defence in the absence of such reports. It was clear, therefore, to the plaintiff/appellant when the defence was received that causation would be the battleground in this case with expert testimony on both sides.

8 The case was set down for hearing on 18th November, 2010, and was given a trial date of 19th October, 2011. However, on 5th September, 2011, some five weeks or so before the trial, the defendant/respondent conceded the issue of causation and an amended defence was delivered on 12th October, 2011. This admission in relation to causation occurred after counsel had been briefed for the trial and after a very significant amount of work had been done by the appellant's solicitor, both on the issues of liability and quantum between September 2008 and September 2011. Thus, briefs for counsel and the booklets for the Court and the respondents had been prepared by the appellant's solicitors prior to the admission of liability. They subsequently had to be amended in the light of the concession on liability. The appellant's solicitors in their submissions state that the documentary burden in this case comprised over twenty bankers' boxes of documentation.

9 Moreover, the appellant's solicitors engaged approximately 25 witnesses for the purpose of the assessment hearing, covering a number of different issues ranging...