Staunton v Durkan

• Jurisdiction: Ireland
• Judge: BLAYNEY J.
• Judgment Date: 13 June 1996
• Neutral Citation: 1996 WJSC-SC 4676
• Court: Supreme Court
• Date: 13 June 1996

1996 WJSC-SC 4676

THE SUPREME COURT

O'Flaherty J.

Blayney J.

Murphy J.

239/93

STAUNTON v. DURKAN

BETWEEN/

JAMES STAUNTON

Plaintiff

and

MATTHEW DURKAN, DANIEL ROCHE AND PATSY SHERIDAN

Defendants

Citations:

RSC O.94 r37(8)

RSC 0.94 r37(18)

KELLY V BREEN 1978 ILRM 63

ASPELL V O'BRIEN 1993 3 IR 516

GALLAGHER SHATTER & CO, STATE V DE VALERA 1991 2 IR 198

Synopsis:

CIVIL SERVANT

Witness

Fees - Payment - Propriety - Test - Witness attended trial to give evidence as employment consultant - Plaintiff's solicitor paid witness attendance fees - Payments disallowed on taxation on ground that witness's attendance did not cause him financial loss - Distinction between ordinary witness and expert witness - Proper test being whether no experienced and prudent solicitor would make such disbursements - (239/93 - Supreme Court - 13/6/96) - [1996] 2 ILRM 509

|Staunton v. Durkan|

PRACTICE

Costs

Taxation - Review - Witness - Fees - Payment - Propriety - Plain tiff injured in industrial accident - Issue in plaintiff's action being extent of his employment potential - Fees paid to plain tiff's employment consultant for attendance at trial as witness - Fees disallowed on basis that witness was a civil servant who had not suffered financial loss by attendance in court - Mistaken test - Test being whether plaintiff's solicitor acted reasonably in paying stand-by and attendance fees to an employment consultant - Rules of the Superior Courts, 1986 (S.I. No. 15), order 94, r. 37(8)(18) - (239/93 - Supreme Court - 13/6/96)1996 2 ILRM 509

|Staunton v. Durkan|

1 13th day of June 1996 byBLAYNEY J.

BLAYNEY J.

2 This is an appeal from the decision of the President of the High Court on an issue arising in the taxation of the plaintiff's costs.

3 The plaintiff suffered personal injuries on the 16th November 1987 in an industrial accident while working for the defendants. At the trial of his action on the 28th November 1991 the defendants were held liable and the plaintiff recovered a decree for £31,199 damages together with the costs of the action when taxed and ascertained.

4 On the taxation of the plaintiffs costs the Taxing Master made a reduction of £1,764 in the fees and expenses claimed for one of the plaintiffs witnesses, Mr. E.J. Hoban, who is an employment consultant.

5 The solicitors for the plaintiff lodged an objection to this deduction but on the review of the taxation by the Taxing Master the objection was disallowed.

6 The plaintiff then applied to the High Court to review the decision of the Taxing Master and on this review the learned President of the High Court was asked to determine a single issue, namely, whether Mr. Hoban had been entitled to a fee of £150 for each of the days on which he had been required to attend Court in connection with the trial of the action. The learned President decided that he was not entitled to be paid any fee and the sole issue on this appeal is whether he was correct in coming to that conclusion.

7 The background facts are not in dispute and are as follows. Mr. Hoban is a fulltime Civil Servant presently seconded to FÁS. Outside his working hours he carries on a practice as an employment consultant and he has the consent of the management of FÁS to his doing so. He was retained by the plaintiff's solicitor to advise and give evidence at the trial in regard to the plaintiff's prospects of obtaining employment as his right hand is permanently affected by the injury he sustained. In the note of his fees submitted to the plaintiff's solicitor, the first three items were as follows:-

20.11.89	Interview assessment and report £100.
20.11.90	ditto £75.
12.03.91	Interview calculation of loss of earnings report £200.

8 Of these three items the first two were allowed in full by the Taxing Master and a sum of £50 was allowed in respect of the third item. The items which are in issue on this appeal were expressed as follows by Mr. Hoban in his note of fees:

9 1. Stand-by to attend High Court in Galway £75 for each day £150.

10 2. High Court hearing in Galway eight days at £150 per day £1,200.

11 The Taxing Master gave the following reason in his report for disallowing these items:-

"accepted Mr. Beahan's submission in respect of the Court attendances and made no allowance... I explained that I was not prepared to sanction nor was it the practice of my predecessors to sanction allowances to Civil Servants. In such circumstances I held that I could not condone such allowance of any person who was at the same time being paid out of public funds to engage in such a practice and disallowed in toto that part of the claim.

I further came to the conclusion that the fact that Mr. Hoban had taken holidays had nothing to do with it because equally the monies provided out of central funds provided for Civil Servants holidays."

12 The learned President took the same view. He said in his judgment:-

"It seems to me that the net issue before me is:

What is the nature of the charges which are paid to a witness when he attends Court?

I have come to the conclusion that the arguments which are...