State (Gallagher Shatter) v De Valera

• Jurisdiction: Ireland
• Judge: McCARTHY J.
• Judgment Date: 01 January 1986
• Neutral Citation: 1984 WJSC-SC 2212
• Court: Supreme Court
• Docket Number: (4/1984)
• Date: 01 January 1986

STATE (GALLAGHER SHATTER) v de VALERA

BETWEEN:

THE STATE (AT THE PROSECUTION OF RICHARD F. GALLAGHERSHATTER AND COMPANY

Prosecutors/Appellants

AND

TOIRLEACH DE VALERA (A TAXING MASTER)

Respondent

1984 WJSC-SC 2212

O'Higgins C.J.

Finlay P.

Henchy J.

Hederman J.

McCarthy J.

(4/1984)

THE SUPREME COURT

Subject Headings:

HIGH COURT: jurisdiction

PRACTICE: costs

SOLICITOR: right

JUDICIAL REVIEW: certiorari

TAXING MASTER: jurisdiction

WAIVER: right

1 JUDGMENT delivered on the 20th day of December 1984by McCARTHY J. [NEW DISS]

2 This appeal raises questions as to the time and manner in which a client may seek taxation of a solicitor's Bill of Costs in respect of contentious matters, and the true construction of the statutory provisions concerning the Superior Courts Rules Committee, the Rules of the Superior Courts (S.I. No. 72 of 1962) and of the Attorneys and Solicitors (Ireland) Act, 1849 (12 & 13 Viet. c. 53). The history of the matter, initially a family law case, is set out in detail in the judgment of Costello J. and, for the purpose of this judgment, I adopt the sequence of events subject to the correction of what is agreed to be an error of omission. At p. 9 of the typescript, the judgment reads:-

"After payment the plaintiff then wrote, on the 25th October 1982 (recte - the 23rd October 1981) as follows:-"

3 "I now request you to make available to me directly any documents which you hold in relation to the above matter.

4 May I further ask you to make available to me a more detailed itemised Bill of Costs than the one I presently hold for taxation purposes as I gather the one I hold is not adequate."

5 Whilst the plaintiff and her solicitors may have earlier been at cross purposes this letter is a clear reference to the solicitor and client Bill of Costs which she had paid. Instead of informing the plaintiff that they could not prepare a Party and Party Bill without their documents they gave the plaintiff all their files and papers and then wrote on the 2nd November stating We are not in a position to prepare any further detailed account in the matter and indeed we are not prepared to do so. So having obtained payment of their solicitor and client costs they resiled from their previous position, put it out of their power to prepare a detailed bill, and, indeed, indicated that they were not prepared to prepare a Party and Party Bill even though their solicitor and client bill had by then been paid."

6 In his affidavit showing cause, the respondent exhibited anumber of letters that passed between the prosecutors and the plaintiff (the client). Unfortunately, he did not include this letter of the 9th October 1981, subsequent to which, it is agreed that the client called to the prosecutors' office and obtained all her papers whereupon she delivered, by hand, the letter of the 23rd October 1981, which was not read until after she had departed taking all her papers with her. I am confident that if the learned trial Judge had been aware of these additional facts, he might well have refrained from the criticism implied in his observations which I have quoted. As is clear from the affidavits grounding the motion to adduce further evidence in this appeal, the error in this regard was not of the prosecutors' making, since they did not have their copy of the letter of the 9th October 1981, which had been handed in to the respondent at the time of the taxation. Counsel for the prosecutors has submitted that the learned trial Judge was "deeply influenced" by the finding by the Taxing Master that there had been excess charges made upon the client; a reading of the judgment also suggests that, quite understandably, in the light of the facts as he knew them, the learned trial Judge was critical of what he thought to be a changing of attitude by the prosecutors.

7 Having failed in their objection to the jurisdiction of the Taxing Master to enter upon the taxation of the solicitor and client bill, the prosecutors contested the taxation itself and, faced with a substantial reduction in the amount allowed on the bill, which would have involved a substantial repayment to the client, they sought and obtained a conditional order of certiorari to quash:-

8 (1) The Summons to Tax dated the 1st day of October 1982

9 (2) The taxation which proceeded on foot of the said summons to taxand

10 (3) The ruling of the Taxing Master dated the 29th day of July 1983 upon the grounds that

11 i "(i) the respondent has no jurisdiction to tax a Bill of Costs after payment thereof without an order of this Honourable Court referring such Bill of Costs to him pursuant to s. 6 of the Attorneys and Solicitors (Ireland) Act, 1849.

12 (ii) That the respondent was functus officio (stet) on the said date, the taxation of costs having been completed on the 19th day of November 1982 or at the latest on the 13th day of December1982".

13 It was ordered that the Order and the principal grounding affidavit be served on the Chief Clerk of the Taxing Master's Office on behalf of the respondent and on the plaintiff/client. The latter did not show cause but the respondent showed cause by affidavit against making the conditional order absolute and, through Counsel, argued in the HighCourt and in this Court the validity of the several procedures in the taxation. He further contended, by way of special answer, that the prosecutors had, in any event, waived their objection to the taxation proceeding and, further, by reason of their own conduct in failing, it was said, in candour - the principle of uberrima fides - should be refused the relief sought.

The jurisdiction of the Taxing Master

14 The learned trial Judge concluded that O. 99, r. 15(e) of the Rules of the Superior Courts, 1962, conferred on the Taxing Master the power to tax without any court order costs as between solicitor and client, in addition to the jurisdiction which he has to tax bills referred to him under the provisions of the 1849 Act. He went on to say:-

"The jurisdiction of the Rules Committee to confer this power cannot be challenged - nor has it been. It had been provided by statute (see paragraph 19(a) of the Eighth Schedule to the Courts (Supplemental Provisions) Act, 1961) that each of the Taxing Masters is to have such powers and duties as are conferred on them by statute or by Rules of Court. The RulesCommitteehas jurisdiction, therefore, to confer on the Taxing Master a power to tax solicitor and client costs without the necessity of an order of reference under the 1849 Act. There is therefore, no problem in reconciling the 1962 Rules with the 1849 Act - a separate and distinct power to...