Smyth v Tunney (No. 3)

JurisdictionIreland
JudgeMr.Justice McCracken
Judgment Date01 January 1999
Neutral Citation[1998] IEHC 94
CourtHigh Court
Date01 January 1999

[1998] IEHC 94

THE HIGH COURT

No.10501P/1998
SMYTH & GENPORT LTD v. TUNNEY, CROFTER PROPERTIES LTD, COULTER & DEVINE

BETWEEN

PHILIP SMYTH AND GENPORT LIMITED
PLAINTIFFS

AND

HUGH TUNNEY,CROFTER PROPERTIES LIMITED,GERARD B.COULTER AND CAROLINE DEVINE
DEFENDANTS

Citations:

RSC O.99 r38(3)

COURT & COURT OFFICERS ACT 1995 S27(3)

FENTON V SCHOFIELD 100 ILTR 69

SOUTH MEATH ELECTION PETITION, IN RE 1893 32 LRI 407

COMMISSIONERS OF IRISH LIGHTS V MAXWELL WELDON & DARLEY 1998 1 ILRM 421

SMYTH V TUNNEY 1993 1 IR 451

LOVEDAY V RENTIN 1992 3 AER 184

Synopsis

Practice and Procedure

Taxation; bill of costs; review of taxation of the taxing master; whether taxing master erred in principle in saying that apportionment did not apply in relation to a Motion of considerable importance and relevance; whether taxing master erred in disallowing costs of a specific attendance fee; whether taxing master erred in disallowing brief fees for one senior counsel where the motion made was of such importance as to constitute exceptional circumstances; whether taxing master erred in disallowing costs of written submissions which had been specifically directed by the Supreme Court; whether taxing master erred in apportionment of instruction fees; whether the taxation was unjust; s. 27(3), Court and Court Officers Act, 19951995 O 99 r. 38(3), Rules of the Superior Court Held : Taxation reviewed; error on the part of the taxing master resulting in unjust taxation; apportionment allowed and fees claimed reviewed; solicitors claim reduced to £15,000 Philip Smyth and Genport Ltd v Tunney - High Court: McCracken J. - 12/06/1998 - [1999] 1 ILRM 211

In deciding to alter a decision of the Taxing Master the Court must not only be satisfied that he erred in reaching his decision but must also be satisfied that the taxation was unjust. The affidavit filed by the first and second defendants which was used for both motions was a vital part of the defendants case in successfully resisting the plaintiffs' motion to adduce additional evidence and therefore there should have been an apportionment of the costs attributable to this motion. The High Court so held in varying the decision of the Taxing Master and further saying that while the costs of two senior counsel would not normally be allowed in respect of a motion it was clear that the motion to adduce additional evidence was so important as to amount to exceptional circumstances justifying the briefing of two senior counsel.

1

Mr.Justice McCracken delivered the 12th day of June 1998.

2

This is a Motion by the first and second named Defendants pursuant to Order 99 Rule 38(3) of the Rules of the Superior Courts seeking a review of the taxation by Taxing Master James Flynn of certain items contained in a Bill of Costs. Before considering the individual items, it is necessary to set out generally the nature of the proceedings, and in particular of the Motion in respect of which these costs were awarded.

3

The action was a lengthy and complicated one which was heard over several weeks by Murphy J. It concerned a claim that a document relating to the settlement of an earlier dispute between the parties had been altered by or on behalf of the Defendants after it had been signed,and that the Defendants had conspired together fraudulently to conceal such alteration. The action was dismissed by Murphy J., and the Plaintiffs appealed this dismissal to the Supreme Court. Subsequently, two Motions came before the Supreme Court, which were heard together, one being a Motion by the first and second named Defendants to strike out the appeal for want of prosecution, and the other being a Motion by the Plaintiffs to adduce additional evidence in the Supreme Court. The hearing before the Supreme Court lasted for four days, after which the Supreme Court dismissed the application to adduce additional evidence, and awarded the costs of that Motion to the Defendants herein, such costs to be taxed in default of agreement. It is from the taxation of those costs that this Motion arises.

4

In his report on this taxation, the Taxing Master has considered the legal principles applicable in considerable detail.

5

The basis upon which this Court can review a taxation of costs is set out in Section 27(3) of the Court and Court Officers Act, 1995which provides, insofar as it refers to the Taxing Master rather than the County Registrar, as follows:-

"The High Court may review a decision of a 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 is unjust".

6

The principle upon which I must act, therefore, is not simply to decide whether the Taxing Master erred, but also, if I am to alter his decision, I must find that his taxation was unjust. I cannot approach this issue on the basis of trying to assess what costs I would have awarded had I been the Taxing Master. It is on this basis that I turn to consider the individual items in dispute. These fall under six headings, which I propose to consider individually.

1. AFFIDAVIT OF PATRICK O'DOHERTY
7

Both the Motion to dismiss for want of prosecution and the Motion to adduce additional evidence were heard at the same time,but the award of costs was only in relation to the Motion to adduce additional evidence, the costs of the other Motion being reserved. The Defendants filed one Affidavit which was used in...

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