State (Gallagher, Shatter & Company ) v De Valera (No 2)

• Jurisdiction: Ireland
• Judge: Mr. Justice Barrington
• Judgment Date: 16 January 1987
• Neutral Citation: 1987 WJSC-HC 1116
• Docket Number: [1983 No. 493 SS],493 S.S./1983
• Court: High Court
• Date: 16 January 1987

1987 WJSC-HC 1116

THE HIGH COURT

493 S.S./1983

SHATTER & CO v. DE VALERA

IN THE MATTER OF THE ATTORNEYS AND SOLICITORS (IRELAND)

ACT 1849

AND IN THE MATTER OF A TAXATION ENTITLED

"MRS. EILISH DELANEY TO RICHARD F.GALLAGHER SHATTER & CO., SOLICITORS"

AND IN THE MATTER OF THE COURTS OFFICERS ACT 1926

AND IN THE MATTER OF THE COURTS (SUPPLEMENTARY PROVISIONS)

ACT 1961

AND IN THE MATTER OF THE RULES OF THE SUPERIOR COURTS 1926

BETWEEN

THE STATE AT THE PROSECUTION OF RICHARD F. SHATTER & CO.

PROSECUTORS

AND

TOIRLEACH DE VALERA A TAXING MASTER

RESPONDENT

Citations:

ATTORNEYS & SOLICITORS ACT 1844 S2

ATTORNEYS & SOLICITORS ACT 1844 S6

RSC O.99 r15(e)

HEALY, STATE V O'DONOGHUE 1976 IR 325, 110 ILTR 9, 112 ILTR 37

BUCKLEY V AG 1950 IR 67

DUNNE V O'NEILL 1974 IR 180 1975 109 ILTR 101

KELLY V BREEN 1978 ILRM 63

ROBB V CONNOR IR 9 EQ 373

RSC O.99 r37(18)

RSC O.60

Synopsis:

PRACTICE

Costs

Taxation - Review - Party and party costs - Solicitor's disbursements - Counsel's fees - Principles applicable - The prosecutors were solicitors who had acted for a client in civil proceedings - The prosecutors" bill of costs was paid by the client - The client applied to the Taxing Master to have the bill taxed - At the taxation of those costs the prosecutors objected that the Taxing Master had no jurisdiction to tax the bill as more than 12 months had elapsed since the client had paid the bill - Nevertheless, the Taxing Master taxed the bill - The prosecutors then obtained in the High Court a conditional order of certiorari quashing the taxation of the client's bill unless cause were shown to the contrary - During the certiorari proceedings the Taxing Master described the client's bill as being grossly excessive, and imputed that the prosecutors had been lacking in candour - The cause shown by the Taxing Master was allowed by the High Court and the conditional order was discharged - The Supreme Court, in allowing the prosecutors" appeal, disallowed the cause shown, made absolute the conditional order, and ordered the Taxing Master to pay the prosecutors" costs of the certiorari proceedings in the High Court and the Supreme Court when taxed and ascertained - See ~The State (Gallagher, Shatter & Co.) v. de Valera~ [1986] ILRM 3 - At the taxation of the prosecutors" costs of the certiorari proceedings, the Taxing Master disallowed (a) 20% of the brief fee marked by, and paid to, senior counsel for the appeal to the Supreme Court and (b) 25% of the refresher fees marked by, and paid to, that counsel for that appeal - The solicitors for the prosecutors applied to the High Court for a review of the taxation of the prosecutors" costs of the certiorari proceedings - Held that the discretion of a Taxing Master to disallow part of a solicitor's disbursements is not properly exercised where the disallowance is based on the Taxing Master's personal view that the disbursement was excessive or that the solicitor had not been reasonably careful or prudent in making the disbursement, but is exercisable if, in the opinion of the Taxing Master, no solicitor acting reasonably carefully and prudently, based on his experience, would have approved the disputed fee or would have made the disputed disbursement - Held that the Taxing Master had erred in principle and that the disputed items should be allowed in full - Principles in ~Dunne v. O'Neill~ [1974] I.R. 180 and ~Kelly v. Breen~ (4/4/78) examined - (1983/493 SS - Barrington J. - 16/1/87) - [1987] ILRM 555 [1987] IR 55

|The State (Shatter & Co.) v. de Valera|

1 Judgment of Mr. Justice Barrington delivered the 16th day of January, 1987.

2 This is a Motion to review the taxation of the Prosecutors" costs in the above entitled proceedings.

3 The items in respect of which the review is sought are all Brief Fees marked by Counsel in the High Court or in the Supreme Court in the course of the litigation and agreed to by their instructing Solicitor. It therefore appears to me that the substantial issue raised in this review is an issue of principle.

4 The background to the case is set out in the Taxing Master's Report dated the 29th day of November 1985, in his Supplemental Report dated the 18th day of February 1986 and in Item 196 of the Bill of Costs furnished on behalf of the Prosecutors.

5 From these it appears that the Prosecutors in the proceedings were a firm of Solicitors who had done considerable legal work on behalf of a client over a period of two and a half years. They presented a Bill of Costs to their client on the 30th November 1980 The bill remained unpaid for over 10 months when the Prosecutors instituted proceedings in the Circuit Court to recover the amount of the bill.

6 On the 9th of October 1981 the client paid the amount of the bill in full. Eleven months after this, on the 1st of October 1982, the client applied, by signed requisition to tax, to the Taxing Master to have the bill taxed.

7 At the commencement of the taxation the Prosecutors objected (relying on the provisions of Sections 2 and 6 of the Attorneys and Solicitors Act 1844) that the Taxing Master had no jurisdiction to tax the bill as more than twelve months had elapsed since the delivery of the bill and the bill had been paid.

8 The matter was adjourned to enable the Taxing Master to consider the position and was re-entered two weeks later. Objection was again made by the Prosecutors and, despite this, the Taxing Master, relying on the provisions of Order 99, Rule 15 E of the Rules of the Superior Courts 1962 proceeded with, and concluded, the taxation. Objections to the disallowances by the Taxing Master were lodged by the Prosecutors but were substantially over-ruled.

9 The Bill of Costs was re-entered before the Taxing Master on the 28th day of July 1983 by the clients representative as neither party had lodged a draft Certificate of Taxation or taken any steps to take up the Certificate of Taxation. Ultimately on the 29th day of July 1983 the Taxing Master ruled and directed that Messrs Gallagher Shatter & Co. take up a Certificate of Taxation within 14 days and, within a further seven days, hand over and furnish the original Certificate of Taxation to the client or to her Solicitor and, on the failure to do either, that the client was to be at liberty to take up the Certificate of Taxation and to deduct stamp duty together with any credits due to her from the Bill of Costs.

10 At this stage the Prosecutors applied for and obtained a Conditional Order of Certiorari dated the 12th of August 1983 to quash the proceedings before the Taxing Master for want of jurisdiction.

11 A lengthy Affidavit showing cause was filed on behalf of the Respondent. In this the Respondent raised five main issues which may be summarised as follows-

12 a a. whether an Order of Certiorari can be made against a Taxing Master.

13 b b. Whether the Taxing Master had jurisdiction to tax the Bill of Costs pursuant to Order 99, Rule 15 E.

14 c c. Whether the Prosecutors had accepted the Taxing Master's jurisdiction by taking part in the taxation and accordingly had waived any rights which they might have had to object to the validity of the taxation.

15 d d. Whether there was a lack of candour on the part of Alan Joseph Shatter - one of the partners in the Prosecutors" firm, in the affidavit grounding the application for the Conditional Order.

16 e e. Whether the Bill of Costs submitted to the client on behalf of the Prosecutors was "grossly excessive".

17 Notices of intention to cross-examine the Respondent and the various Deponents who had sworn Affidavits on behalf of the Prosecutors were served.

18 The Prosecutors" application to make absolute the Conditional Order of Certiorari was at hearing for two days before Mr. Justice Costello in the High Court and he, in a reserved Judgment, allowed the cause shown and refused to make abolute the Conditional Order of Certiorari.

19 The Prosecutors appealed to the Supreme Court.

20 The Respondent brought a Motion to the Supreme Court seeking dismissal of the Prosecutors" appeal for want of prosecution The Supreme Court rejected this application.

21 The Prosecutors subsequently served notice on the Attorney General pursuant to Order 60 of the Rules of the Superior Courts raising questions as to the consitutional validity of Order 99, Rule 15 E of the Superior Court Rules and of certain sections of the Courts of Justice Acts 1924and 1936in the event of the Supreme Court upholding the interpretation of the law adopted by Mr. Justice Costello.

22 The Supreme Court subsequently invited the parties to lodge written submissions in advance of the hearing of the appeal and the Prosecutors in fact lodged such written submissions. However, because of the view which it subsequently took of the law, the Supreme Court did not find it necessary to consider the constitutional issue.

23 The case ultimately came on for hearing in the Supreme Court on the 4th of December 1984 and was at hearing on the 4th, 5th and 6th days of December 1984. The Court delivered its reserved Judgment on the 20th of December 1984 in which it allowed the appeal, disallowed the cause shown, and made the Conditional Order of Certiorari absolute.

24 The Court also Ordered that the Respondent do pay to the Prosecutors their costs of the appeal (including the costs of their written submissions to the Court) and their costs of the proceedings in the High Court (including their costs of the Conditional Order) when said costs should have been taxed and ascertained.

25 From the foregoing recital of the salient facts it is clear that the case raised issues touching the jurisdiction of the Taxing Master and was an important case not only from the point of view of the Taxing Master but also from the point of view of the entire Solicitors" profession. From the point of view of the Prosecutors it had the added importance that...