Smyth v Tunney

• Jurisdiction: Ireland
• Judgment Date: 01 January 1993
• Date: 01 January 1993
• Docket Number: [1988 No. 10501P]
• Court: High Court

High Court

[1988 No. 10501P]

Smyth v. Tunney

Philip Smyth and Genport Limited

Plaintiffs

and

Hugh Tunney, Crofter Properties Limited, Gerard B. Coulter and Caroline Devine

Defendants

Cases mentioned in this report:—

Attorney General v. Simpson (No. 3) [1963] I.R. 329.

Conway v. Ní Mhainnin (Unreported, High Court, 2nd March, 1980, Finlay P.).

Crotty v. An Taoiseach (No. 2) [1990] I.L.R.M. 617.

Duan v. Freshford Co-operative Creamery Ltd. (1942) 76 I.L.T.R. 220.

Dunne v. O'Neill [1974] I.R. 180; (1974) 109 I.L.T.R. 101.

Kelly v. Breen [1978] I.L.R.M. 63.

Lavan v. Walsh (No. 2) [1967] I.R. 129.

Robb v. Connor (1875) I.R. 9 Eq. 373.

Simpson's Motor Sales (London) Ltd. v. Hendon Corporation (No. 2)[1965] 1 W.L.R. 112; [1964] 3 All E.R. 833.

The State (Gleeson) v. Minister for Defence (No. 2) (Unreported, High Court, 23rd June, 1980, Gannon J.).

The State (Richard F. Gallagher Shatter & Co.) v. de Valera [1987] I.R. 57; [1989] I.L.R.M. 555.

Practice - Costs - Taxation - Party and party - Review - Brief fees - Criteria - Fees agreed prior to trial - Manner and extent of review by taxing master or High Court - Experience of reasonably careful and prudent solicitor - Disbursements - Fees marked by losing counsel - Materiality - Equivalent cases - Nature of equivalence - Current practice of solicitor and counsel - Special fee - Status - Rules of the Superior Courts, 1986 (S.I. No. 15), O. 99, r. 38(3).

Practice - Costs - Solicitors - Party and party - Instruction fee - 17 day trial - Commercial lease - Allegations of fraud and conspiracy - Nature of instruction fee - Purpose - Prescribed scale fees - Adequacy - Whether instruction fee to compensate inadequacy - Extent of solicitor's work required - Respective roles of solicitor and counsel - Witness assembly - Co-parties separately represented - Liaison between solicitors - Claim for expert witness - Rules of the Superior Courts, 1986 (S.I. No. 15), Appendix W.

Review of Taxation.

The facts are fully set out in the judgment of Murphy J., post. The motion to review taxation was brought by the defendants upon the report of the taxing master on an interim certificate of the 6th February, 1991, having regard to objections made by the defendants in the course of taxation and pending review in the High Court. The review was heard by the High Court (Murphy J.) on the 16th, 17th, 18th and 19th April, 1991.

The plaintiffs and first defendant were lessee and lessor in dispute over a Dublin hotel and entered into a written compromise agreement witnessed by the remaining defendants. The compromise as signed stipulated "on payment of £250,000" by the first plaintiff. He disputed that this term was ever part of the agreement and alleged that it had been inserted by the third defendant after he had signed. In an action for damages for conspiracy which lasted 17 days in the High Court part of the plaintiffs' case rested further on the alleged tampering with the tapes which had been intended to record the events at two meetings. The plaintiffs' case was dismissed by Murphy J. with costs and the plaintiffs appealed. They further challenged the bills of cost submitted by the defendants for party and party taxation. Each defendant was separately represented by solicitor and one senior and one junior counsel. The brief fees suggested by counsel some weeks before the opening of the trial was £10,500 on the brief and £2,100 refresher for senior and £7,000 on the brief and £1,400 for junior counsel respectively. It was thought that the trial should last three to four days. These were considered reasonable by their instructing solicitors. The plaintiffs were represented by two senior and one junior counsel who had charged correspondingly £5,250 on the brief for each senior with refreshers of £1,050. The solicitors for the first and second and the third and fourth defendants sought to recover on party and party taxation instruction fees of £90,000 and £36,000. By an interim certificate the taxing master reduced the brief fees for senior counsel to £6,875 and the refreshers to £1,050 with comparable reductions in the fees allowed to junior counsel. The instruction fees of the solicitors for the defendants were reduced to £25,000, £12,500 and £8,000 respectively. On a motion to review the certificate of taxation in the High Court it was

Held by Murphy J., in substituting somewhat higher fees, viz.£7,875 on the brief and £1,050 refresher for senior counsel, and instruction fees of £40,000, £22,500 and £16,000 for the solicitors, 1, that although the trial was fought with an exceptionally high level of professional forensic skill, the case involved no question of law and revolved around questions of non-technical fact which did not require counsel to master any technical or scientific material.

2. That although the brief fees had been proposed by counsel and not offered by their solicitors, yet they had been agreed in advance of the hearing.

3. That when considering the amount of counsel's fee agreed by a solicitor the taxing master could only disallow the amount agreed if no solicitor acting reasonably carefully and reasonably prudently based on his experiences in the course of his practice would have determined such fees or would have made such disbursements.

The State (Richard F. Gallagher Shatter & Co.) v. de Valera [1987] I.R. 57 applied.

4. That the taxing master should furthermore have regard to the practice of barristers and solicitors in marking or agreeing fees and the particular circumstances of the case in question.

Kelly v. Breen [1978] I.L.R.M. 63 considered.

5. That the amount of counsel's fee was to be determined in accordance with the concept of the "hypothetical counsel" capable of conducting the particular case efficiently and without demanding a particularly high fee because of his special reputation or other extraneous reason; but that on the evidence before him there was no basis for the taxing master's decision that the brief fees proposed and agreed were special fees.

Dunne v. O'Neill [1974] I.R. 180 and Simpson's Motor Sales (London) Ltd. v. Hendon Corporation (No. 2)[1965] 1 W.L.R. 112 applied.

6. That it was therefore the function of the taxing master and of the High Court on a review from him to examine the fees actually agreed between counsel and solicitor viewed from the nature of the arrangement itself, and then by reference to the standard of such hypothetical experienced and knowledgable solicitor briefing the hypothetical counsel competent to conduct what was a heavy and difficult case.

7. That since a knowledge of the levels of counsel's fees actually recovered on party and party taxation in recent cases must be likewise imputed to such experienced and knowledgable instructing solicitor, having regard to such recent benchmark awards on taxation, the court would allow brief fees of £7,875 on the brief and £1,050 for refreshers.

8. That in relation to the solicitor's instruction fee, notwithstanding absurdly low maximum fees prescribed for certain items to be recovered on party and party taxation, the assessment of the amount of the solicitor's instruction fee should not be used to compensate him (whether as against his own client or the unsuccessful party to the proceedings) for the inadequacy of the fees recoverable for those individual items.

9. That the solicitor's instruction fee had to be seen in the context of the amount of work and skill required in having carriage of and preparing the case for trial; and that regard should be had to the number of and difficulty, if any, of marshalling witnesses or gathering evidence; but that at the trial such preparatory work was overshadowed by the forensic skills required of counsel.

10. That while the courts were willing to place particular reliance on the knowledge and experience of the taxing master when allowing instruction fees of solicitors, there remained an obligation on the court to deal with such fees even where the taxing master did not proceed upon any wrong principle.

Kelly v. Breen [1978] I.L.R.M. 63 applied.

11. That taking into account the duplication of witnesses and evidence among the various defendants, the instruction fees allowed for the three solicitors' firms retained by the defendants would be £40,000, £22,500 and £16,000 respectively.

12. That the taxing master's disallowance of senior counsel's fee claimed in the sum of £1,500 for taking judgment would be affirmed and the fee reduced to £210.

13. That the defendants' further claim for the fees of a handwriting expert witness should be allowed in full up to the date when the plaintiff's handwriting expert testified and only after which it became apparent that there was no conflict on such expert evidence.

14. That the fees for further witnesses summoned but not called were properly allowed by the taxing master in that they were necessary and material to matters in issue between the parties, albeit it was not entirely free from doubt as to whether the evidence intended to be tendered would be admissible.

Duan v. Freshford Co-operative Creamery Ltd. (1942) 76 I.L.T.R. 220 applied.

Per Murphy J.: The interest of the client and the public generally would be better served if realistic fees were prescribed in Appendix W of the Rules of the Superior Courts in the first instance, to obviate having recourse to an artificial and doubtful procedure of using the solicitor's instruction fee as "the great equaliser" to provide him with proper remuneration.

Cur. adv. vult.

Murphy J.

This matter came before me by way of a series of motions on behalf of both defendants and the plaintiffs seeking orders pursuant to O. 99, r. 38 (3) of the Rules of the Superior Courts reviewing the taxation of the costs of the defendants herein in a variety of respects but particularly in relation to the brief fees and refreshers paid to counsel and to the instruction fees of the solicitors acting on behalf...