Sheehan v Corr

• Jurisdiction: Ireland
• Judge: Ms. Justice Laffoy
• Judgment Date: 15 June 2017
• Neutral Citation: [2017] IESC 44
• Docket Number: [Appeal No. 94/16],[S.C. No. 94 of 2016]
• Court: Supreme Court
• Date: 15 June 2017

BETWEEN

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

PLAINTIFF/RESPONDENT

AND

DAVID CORR

DEFENDANT/APPELLANT

[2017] IESC 44

Laffoy J.

Denham C.J.

O'Donnell Donal J.

McKechnie J.

Clarke J.

Laffoy J.

[Appeal No. 94/16]

THE SUPREME COURT

Negligence – Bill of costs – Instructions fee – Respondent seeking damages for alleged negligence on the part of the appellant – Whether instructions fee had been incorrectly assessed

Facts: The plaintiff/respondent, Ms Sheehan, sought damages for alleged negligence on the part of the defendant/appellant, Dr Corr, in the management of the ante-natal care of the plaintiff’s mother, which it was alleged resulted in the plaintiff suffering catastrophic birth injuries, ultimately developing cerebral palsy and being left with profound disability. A bill of costs was presented by the plaintiff to the defendant for taxation pursuant to the order of the High Court dated 26th October, 2011. The amount claimed in the bill of costs for the “general instructions fee” was €485,000. The matter came on for taxation before the Taxing Master on 11th and 12th September, 2012. The Taxing Master issued a ruling on 7th November, 2012 in relation to the instructions fee. It was measured at €270,000. The plaintiff brought objections before the Taxing Master asserting that the instructions fee had been incorrectly assessed and that the allowance was inadequate and unjust. The Taxing Master delivered his ruling on the objections on 29th May, 2014. The outcome in relation to the solicitor’s instructions fee was that he increased it to €276,000, the increase of €6,000 being allowed to take into account the attendance of a senior solicitor and the notional attendance of an assistant solicitor at court for all of the days of the hearing in the High Court. An application was brought by the plaintiff in the High Court in June 2014 for an order pursuant to Order 99, rule 38(3) of the Rules of the Superior Courts 1986 reviewing the ruling of the Taxing Master in respect of the instructions fee, on the grounds that the proceedings before the Taxing Master were unsatisfactory and that the Taxing Master was in error in arriving at his decision following the hearing of the objections. The plaintiff’s application for review was heard in the High Court by Kearns P who delivered judgment on 27th February, 2015, dismissing the application for review. The plaintiff appealed to the Court of Appeal, which found that there had been an error on the part of the High Court. It was concluded that the Court of Appeal had no option but to remit the matter back to the Taxing Master for a renewed assessment of the appropriate instructions fee. The defendant then applied to the Supreme Court for leave to appeal against the decision of the Court of Appeal pursuant to Article 34.5.3o of the Constitution. By its determination dated 26th September, 2016, the Court determined that the defendant had raised issues of general public importance and that leave should be granted.

Held by Laffoy J that the bill of costs presented by the plaintiff in this case, as regards form and content, was not inconsistent with the requirements of Order 99 of the Rules. Laffoy J held that the Court of Appeal erred in finding that the Taxing Master erred in failing to direct the plaintiff to submit a fresh bill of costs to the Taxing Master. Laffoy J held that: (1) as a general proposition, the amount of time actually spent on a case should not be elevated above the relevant criteria mandated by Order 99, rule 37(22); (2) the Taxing Master has power to allow, or direct, the production of retrospective reconstruction of time spent; (3) it is within the discretion of the Taxing Master to disallow the costs of two solicitors dealing with part of a case; (4) general economic conditions are relevant to the proper assessment of a solicitor’s general instructions fee, or a barrister’s brief fee.

Laffoy J held that there would be an order discharging the order of the Court of Appeal, and remitting the matter to the Taxing Master for a renewed assessment of the costs.

Judgment approved.

Judgment of Ms. Justice Laffoy delivered on the 15th day of June, 2017

Outline of background and judicial process to date

1 This appeal from the Court of Appeal raises very important questions in relation to the taxation of a party's costs in litigation and, in particular, the taxation of the solicitor's instructions fee. The costs the subject of the taxation at the root of this case were the costs of the plaintiff in the underlying High Court proceedings, which by order of the High Court made on 26th October, 2011 the defendant was ordered to pay when taxed.

2 The claim in the underlying High Court action, which was commenced by way of a personal injuries summons which issued on 17th November, 2009 (Record No. 2009/ 10344P), was a claim by the plaintiff, an infant suing by her mother and next friend, against the defendant, a consultant obstetrician, for damages for alleged negligence in the management of the ante-natal care of the plaintiff's mother, which it was alleged resulted in the plaintiff suffering catastrophic birth injuries, ultimately developing cerebral palsy and being left with profound disability. As is recorded in the earlier judgments of the High Court and the Court of Appeal, at the pleading stage in the proceedings in the High Court negligence was admitted, but the defendant raised causation as a defence. Causation remained an issue until approximately five weeks before the hearing of the action, which was due to commence in the High Court on 18th November, 2010, when the defendant conceded the issue of causation and an amended defence was delivered. Accordingly, the issue for determination at the hearing, which commenced on 19th October, 2011, was assessment of damages. Having been at hearing for five days in total, the action was settled on an interim basis pending the enactment of legislation governing periodic payment orders. The amount of the interim settlement was €1.9m. The interim settlement was ruled on by the High Court (O'Neill J.) by order dated 26th October, 2011, which also included the order that the plaintiff recover against the defendant the costs of the action, which were to be taxed in default of agreement. This Court was informed that the action ultimately settled for €11.5m.

3 In the interests of clarity, I propose, throughout this judgment, to refer to the parties to the taxation process and the review procedures which ensued as they were described in the underlying High Court proceedings, that is to say, as the plaintiff and the defendant.

4 A bill of costs prepared by Anthony E. McMahon, Legal Costs Accountants, was presented by the plaintiff's solicitors to the defendant's solicitors for taxation pursuant to the order of the High Court dated 26th October, 2011. The amount claimed in the bill of costs for the ‘general instructions fee’ was €485,000. The matter came on for taxation before Declan O'Neill, Taxing Master (‘the Taxing Master’) on 11th and 12th September, 2012. The Taxing Master issued a ruling on 7th November, 2012 in relation to the instructions fee and certain other items in the bill of costs which are not at issue on this appeal. The outcome of the ruling in relation to the instructions fee was that it was measured at €270,000. Following the ruling, the plaintiff brought objections in writing dated 27th November, 2012 before the Taxing Master in which it was asserted that, inter alia, the solicitor's instructions fee had been incorrectly assessed and that the allowance was inadequate and unjust. The Taxing Master heard the objections over three days and into a fourth day from September 2013 to March 2014. The Taxing Master delivered his ruling on the objections on 29th May, 2014. The outcome in relation to the solicitor's instructions fee was that he increased it to €276,000, the increase of €6,000 being allowed to take into account the attendance of a senior solicitor and the notional attendance of an assistant solicitor at court for all of the days of the hearing in the High Court.

5 The ultimate source of this appeal is an application brought by the plaintiff in the High Court in June 2014 for an order pursuant to Order 99, rule 38(3) of the Rules of the Superior Courts 1986 (‘the Rules’) reviewing the ruling of the Taxing Master in respect of, inter alia, the solicitor's general instructions fee, on the grounds that the proceedings before the Taxing Master were unsatisfactory and that the Taxing Master was in error in arriving at his decision following the hearing of the objections. The plaintiff's application for review was heard over three days in the High Court by Kearns P. who delivered judgment on 27th February, 2015 ( [2015] I.E.H.C. 99). Dismissing the application for review, Kearns P. summarised his conclusions as follows (at p. 44):

‘The Court cannot recall any previous case where the process of taxation was canvassed to such extraordinary lengths and in such exhaustive detail. It is impossible in this judgment to address every detail of every argument, every document and every piece of evidence tendered in the hearings before the Taxing Master.

The Court has identified some errors made by the Taxing Master but none are such, in the opinion of the Court, to warrant any interference in the allowance made in respect of the solicitor's instructions fee in this case.’

In the order of the High Court, made on the 6th March, 2015, and perfected on 8th March, 2015, the decision of the Taxing Master was affirmed, and the costs of the application to review were granted to the defendant, with a stay on the order for costs pending the determination of the next appeal.

6 The next appeal was the plaintiff's appeal to the Court of Appeal. That appeal was heard by the Court of...