O'Sullivan v Hughes

• Jurisdiction: Ireland
• Judge: Mr. Justice John Blayney
• Judgment Date: 21 March 1986
• Neutral Citation: 1986 WJSC-HC 1348
• Docket Number: No. 446p/1985
• Court: High Court
• Date: 21 March 1986

O'SULLIVAN v. HUGHES

BETWEEN/

KEVIN O'SULLIVAN, AN INFANT, SUING BY HIS FATHER AND NEXT FRIEND, JOHN O'SULLIVAN

PLAINTIFF

AND

PAUL HUGHES

DEFENDANT

1986 WJSC-HC 1348

No. 446p/1985

THE HIGH COURT

Synopsis:

PRACTICE

Costs

Taxation - Review - Party and party costs - Charges of town agent - Whether allowable - Duplication in bill of costs - Costs of plaintiff's motion for judgment in default of defence - Dublin agent of Cork solicitor making charges for issuing notice of motion and for bespeaking order - Charges disallowed on taxation - Objection - Review of taxation confined to objections made before Taxing Master - Held that disputed expense included in allowance of another item in bill - Duplication of claims impermissible - Motion to review dismissed - No item for charges of town agent in scale of costs - Whether such charges are properly incurred - Whether order 99, r.13(2), applicable - Long- established practice of Taxing Master disallowing those charges - Rules of the Supreme Court, 1962, order 99, r.13(2) - (1985/446 P - Blayney J. - 21/3/86) - [1986] ILRM 555

|O'Sullivan v. Hughes|

PROFESSIONS

Solicitor

Town agent - Charges - Costs - Taxation - Charges disallowed on ground of duplication of costs claimed - ~See~ Practice, costs - (1985/446 P - Blayney J. - 21/3/86) - [1986] ILRM 555

|O'Sullivan v. Hughes|

Citations:

RSC O.99 r13(2)

RSC O.99 r38(5)

WALSHE 96 ILTR 173

1 Judgment of Mr. Justice John Blayney delivered the 21st day of March 1986.

2 This is a motion by the Plaintiff under Order 99, Rule 38(5) of the Rules of the Superior Courts seeking an Order reviewing the Taxation of a Bill of Costs.

3 The Plaintiff issued a Plenary Summons on the 16th January, 1985 seeking damages for personal injuries. The Defendant failed to deliver a defence within the time limited by the Rules and the Plaintiff's Solicitor issued and served a motion for judgment in default of defence. On the hearing of the motion on the 10th June, 1985 the time for delivering the defence was extended and the Plaintiff was awarded his costs of the motion when taxed and ascertained. The Bill of Costs was taxed on the 29th October, 1985 and on the 12th November, 1985 the Plaintiff lodged an Objection to the disallowance of one of the items in the Bill. That Objection was heard by the Taxing Master on the 3rd December, 1985 and was disallowed, the grounds on which it was disallowed being set out in the Taxing Master's report of the 24th January, 1986.

4 The item disallowed was Item 24 in the Bill, which is as follows:

"Paid town agent's charges in respect of issuance of Notice of Motion and Bespeaking Order - £48".

5 The grounds of the Plaintiff's Objection to the disallowance were that the Plaintiff's Solicitor, who practises in Cork, has to incur expense by retaining town agents to issue the Notice of Motion etc., and as this is outlay which has to be incurred it should be allowed.

6 On these facts a clear issue emerges. Is a party who lives at a considerable distance from Dublin, and who retains a Solicitor practising in the locality, entitled to recover from the other party to the litigation, as a part of any costs awarded to him, a sum which his own Solicitor has been obliged to pay to his town agent for work done on behalf of such Solicitor?

7 Mr. Antoniotti, appearing on behalf of the Plaintiff, submits that he is. His main argument was based on Order 99, Rule 13(2) of the Rules of the Superior Courts, the relevant part of which is as follows:

"(2) on a taxation as between solicitor and client and in other special cases, a special allowance may at the discretion of the Taxing Master be allowed -"

(a) in relation to items not mentioned in the said scale (i.e.) the scale of costs contained in Appendix W Parts I, II, III and VII."

8 Mr. Antoniotti submits that this is a special case and that the Taxing Master is accordingly entitled to allow a special allowance in respect of the town agent's charges, there being no item for such charges in the scale of costs in question. He argues that Solicitors practising in the country could be regarded as special cases.

9 I find it difficult to accept this. For a case to be "special" it seems to me that it must have some feature which is either abnormal or unusual; something which distinguishes it from the ordinary run of cases. The fact that the Plaintiff's Solicitor practises outside Dublin could not be said to be either abnormal or unusual. It is a feature which is common to a huge volume of cases. I cannot agree that it has the effect of making this a special case. So I must reject Mr. Antoniotti's submission on this point.

10 He further submitted that what the Taxing Master ought to have done was to have disallowed Item 21, while allowing the disputed Item 24 in full. He conceded that there was duplication between these two items, Item 21 being in respect of attending in Court on the hearing of the Motion, the attendance having been by the town agent. In my opinion the Rules preclude this submission being made at this stage. Order 99, Rule 38(3) provides...