Sulaimon v The Minister for Justice and Equality
|Mr. Justice McDermott
|17 June 2016
| IEHC 350
|[2009 No. 1173 JR]
|17 June 2016
 IEHC 350
THE HIGH COURT
[2009 No. 1173 JR]
Facts: The applicant sought an order for the review of the order of the Taxing Master of the High Court in relation to the taxation of costs whereby the Taxation Master had made a reduction in the fees of the applicant's solicitors. The applicant, after having successfully obtained a judgment in his favour from the Supreme Court, contended that the Taxing Master had underestimated the responsibility placed on the applicant's solicitor and the counsel. The respondent submitted that the decision of the Taxing Master was correct as it was made on party and party basis which were de minimis in nature.
Mr. Justice McDermott upheld the findings of the Taxing Master in relation to the High Court proceedings. The Court, however, held that there should be an increase in the solicitor's fees in relation to the Supreme Court fees. The Court held that under o.99, r. 37 (22) (ii) of the Rules of the Superior Courts, the Taxing Master should consider the special expertise, amount of work done and degree of responsibility fulfilled by a solicitor. The Court found that the present case sought to clarify the law in relation to the application of sections concerning the grant of residence and calculation of the period of residence for making an application for naturalization. The Court observed that the complexity involved in the present case required special knowledge, skill and expertise for being able to put forward the issue in question to the Supreme Court and thus, the time and energy spent by the solicitors could not be ignored by the Taxing Master. The Court opined that the present case could be equated with a test case as it represented the first instance wherein the relevant provisions were interpreted keeping in lieu the difficulty that arose in the practical administration involving a great deal of research and arguments.
By notice of motion dated 17th June, 2014, the applicant seeks an order reviewing the taxation of costs by the Taxing Master of the High Court, dated 29th May, 2014, pursuant to Order 99 Rule 38 (3) of the Rules of the Superior Courts 1986, and for such further or other order as the Court shall deem fit, and for an order providing for the costs of this application.
The relevant background to this matter is fully set out in the judgments of the High Court (Ryan J. (as he then was) in ) and the Supreme Court (O' Donnell and Hardiman JJ.) in ).
The applicant is a minor and was born in Ireland on 24th August, 2008, to a Nigerian couple. Irish citizenship was claimed on his behalf pursuant to s. 6A of the Irish Nationality and Citizenship Act, 1956. However, the respondent refused to issue a Certificate of Irish Nationality. The respondent communicated this decision to the applicant's father by letter dated 5th October, 2009. The respondent determined that the applicant's father was not lawfully resident in Ireland for the required period of three years, during the four years preceding the child's birth. The respondent found that the applicant's father was lawfully resident for a period of 1092 days and thereby fell three days short of the minimum requisite time period of 1095 days.
Judicial review proceedings challenging the respondent's decision refusing to issue a Certificate of Nationality were instituted in November 2009 and leave was granted. Pleadings were exchanged between the parties and the matter was heard on 28th April, 2010. In a decision dated 9th July, 2010, Ryan J. held in favour of the applicant. The decision of the respondent refusing to issue a Certificate of Nationality was quashed. The respondent appealed to the Supreme Court. In a decision dated 21st December, 2012, the Supreme Court dismissed the respondent's appeal and the Orders of the High Court were upheld. The respondent was ordered to pay the applicant the costs of the appeal when ascertained and taxed.
A Bill of Costs was prepared by the applicant's legal costs accountants and came before the Taxing Master on 19th July, 2013. The Taxing Master heard lengthy submissions from both parties before reviewing the solicitors' files. The Taxing Master delivered a written ruling on 26th September, 2013, wherein he set out his analysis of the proposed costs and the reasoning behind his determination. The Taxing Master reduced the fees claimed by both the applicant's solicitor, and counsel, which are set out below. The applicant made objections to these allowances on the 18th October, 2013 pursuant to Order 99 Rule 38 of the Rules of the Superior Courts. Both parties filed extensive written submissions prior to the hearing of the objections. The Taxing Master made his final ruling on 29th May, 2014, dismissing the applicant's objections in their entirety.
The following matters are under review in the current proceedings:
(i) Item number 94: Senior Counsel's High Court Brief fee – claimed at €10,000.00 but reduced on taxation to €7,500.00.
(ii) Item number 97: Junior Counsel's High Court Brief fee – claimed at €6,500.00 but reduced on taxation to €5,000.00.
(iii) Item number 155: Senior Counsel's Supreme Court Brief fee – claimed at €15,000.00 but reduced on taxation to €7,500.00.
(iv) Item number 158: Junior Counsel's Supreme Court Brief fee – claimed at €10,000.00 but reduced on taxation to €5,000.00
(v) Item number 168: This item relates to the Solicitor's General Instruction fee claimed at €107,500.00 and allowed on taxation in the sum of €23,600.00.
Order 99, r. 38 (3) of the Rules of the Superior Courts creates the mechanism whereby a party may apply to the High Court for a review of taxation:
‘Any party who is dissatisfied with the decision of the Taxing Master as to any items which have been objected to as aforesaid or with the amount thereof, may within twenty-one days from the date of the determination of the hearing of the objections or such other time as the Court or the Taxing Master may allow, apply to the court for an order to review the taxation as to the same items and the Court may thereupon make such order as may seem just…’.
Section 27 (3) of the Courts and Court Officers Act, 1995 sets out the High Court's jurisdiction to review a decision of the Taxing Master 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.’
Section 27 (3) limits the Court's remit to intervene to circumstances where the Court is satisfied that the Taxing Master has erred as to the amount of the allowance or disallowance only to the extent that the decision of the Taxing Master is unjust: the Court must be satisfied that there was an error which results in an injustice (see ; ; ; ).
In , Peart J set out the circumstances in which the High Court will be permitted to intervene in the Taxing Master's decision. If the applicant establishes that the Taxing Master has erred as to the amount of the allowance or disallowance and that the error is such as to be clearly and manifestly unjust the court may set it aside.
What constitutes an injustice? In , Kearns J. (as he then was) suggested that it might be possible to delineate a mathematical touchstone against which to measure any impugned award and stated at p. 477:
‘When does an error as to amount become ‘unjust’? It seems to me that, in exercising its powers of review under Section 27, the High Court should adopt a similar role and standard to that traditionally and habitually taken by the Supreme Court in reviewing awards of damages, that is to say that it should not intervene to alter a finding of amount made by the Taxing Master unless an error of the order of 25% or more has been established in relation to an item under challenge.’
The merit of incorporating such a specific figure into the test for injustice has been queried in a number of subsequent decisions. In , Peart J. expressed the following reservations:
‘I have some hesitations about such a pragmatic formula in the context of a costs item …. It seems to me therefore that the question of what is just or unjust in this regard must be viewed on a case to case basis, since different factors may be at play, rather than by an arbitrary formula such as is entirely appropriate to the question of the justice of a damages award per se.’
In ... , Hedigan J. agreed
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