Superquinn Ltd v Bray U.D.C. (No. 2)

• Jurisdiction: Ireland
• Judge: Kearns J
• Judgment Date: 05 May 2000
• Neutral Citation: [2000] IEHC 115
• Court: High Court
• Docket Number: [1988 No. 7966P]
• Date: 05 May 2000

[2000] IEHC 115

THE HIGH COURT

7966p/1988

SUPERQUINN LTD. v. BRAY UDC & ORS

BETWEEN

SUPERQUINNN LIMITED

PLAINTIFF

AND

BRAY UDC, COUNTY COUNCIL OF THE COUNTY OF WICKLOW,UNIFORM CONSTRUCTION LIMITED, COILLTE TEORANTA AND POWERSCOURT ESTATESLIMITED

DEFENDANTS

Citations:

RSC O.99 r38(3)

SUPERQUINN LTD V BRAY URBAN DISTRICT COUNCIL (UDC) 1998 3 IR 542

RYLANDS V FLETCHER 1868 LR 3 HL 330

PUBLIC HEALTH (IRL) ACT 1878 S17

COMMISSIONERS OF IRISH LIFE V MAXWELL WELDON & DARLEY 1997 3 IR 475

BLOOMER V LAW SOCIETY OF IRELAND UNREP GEOGHEGAN 3.12.1999 1999/3/397

GASPARI V IARNROD EIREANN 1997 1 ILRM 207

SUPERWOOD HOLDINGS LTD V SUN ALLIANCE & LONDON INSURANCE PLC 1995 3 IR 303

CLARKE V HARTLEY UNREP BARR 2.12.1992

BEST V WELLCOME 1996 3 IR 378

MIN FOR FINANCE V GOODMAN INTERNATIONAL UNREP LAFFOY 8.10.1999

COURTS & COURT OFFICERS ACT 1995 PART VI

COURTS & COURT OFFICERS ACT 1995 S27(1)

COURTS & COURT OFFICERS ACT 1995 S27(2)

COURTS & COURT OFFICERS ACT 1995 S27(3)

DUNNE V O'NEILL 1974 IR 180

KELLY V BREEN 1978 ILRM 63

RSC O.99 r28

SMYTH V TUNNEY 1999 1 ILRM 211

TOBIN & TWOMEY SERVICES LTD V KERRY FOODS LTD 1999 1 ILRM 428

BULA LTD V FLYNN UNREP MCGUINNESS 7.3.2000

IRISH TRUST BANK LTD V CENTRAL BANK OF IRELAND 1976–77 ILRM 50

Synopsis

Administrative Law

Costs; powers of Taxing Master; applicants seeking review of decision of Taxing Master; damage caused by "Hurricane Charlie" in 1986 had led to widespread claims being brought against various insurers, one of whom, Eagle Star, exercised its subrogation rights to seek recompense via plaintiff against defendants; very technical evidence had been adduced by both sides of a geographical, typographical and meteorological nature; Taxing Master had dramatically reduced the requested fees of defendant's counsel and solicitors; whether the court is in a position to determine appropriate allowances, particularly those of solicitor's instruction fees; whether there was any basis for finding of Taxing Master that the responsibility factor in relation to the defendants" solicitors was not of an enormous dimension; whether the instant case demanded assessment on its own merits as a case comprising unusual facts; whether the Taxing Master erred in that he applied an a priori method of calculation to his consideration of costs, tying the defendants in to the fees marked by plaintiff's solicitor and counsel; whether any ruling of the Taxing Master must set out an analysis of the work, specifics of calculation and reasoning which leads to the determination in respect of fees; whether it would be unjust to allow present instruction fee to defendants" solicitors to stand; whether counsel's fees should be increased in recognition of complexity and degree of preparation which the case entailed and its "test case" character; s.27(3), Court and Court Officers Act, 1995.

Held: Relief granted in relation to solicitors" instruction fee and counsels" brief fee; refresher fees reduced to £2,000.

Superquinn Limited v. Bray U.D.C. - High Court: Kearns J. - 05/05/2000 - [2001] 1 IR 459

The parties appealed regarding certain orders of costs made by the taxing master. The initial proceedings concerned damage caused by "Hurricane Charlie" in August of 1986. The plaintiff had attempted to prove that the resulting damage had been contributed to or caused by certain acts of the defendants. The plaintiff's claim was dismissed. In these proceedings the plaintiff claimed that the costs allowed to the first and fourth defendants were excessive. Kearns J held that the instruction fee allowed to the solicitors of the first and fourth defendants was not sufficient and substituted the fee of £105,500 for that of £150,000. In relation to counsels' fees Kearns J increased the brief fee from £18,000 to £25,000 allowed to each senior counsel appearing on behalf of the first defendant and allowed £35,000 to the single senior counsel appearing on behalf of the fourth defendant. In respect of refresher fees Kearns J accepted that in this instance the proper sum would be one of 2,000 guineas rather than the 3,000 guineas originally allowed.

1 Kearns Jdelivered the 5th day of May, 2000

2 This matter came before the Court by way of several motions pursuant to Order 99, Rule 38(3) of the Superior Courts, 1986 to review the taxation of the Bills of Costs presented by the first and fourth named Defendants pursuant to an award for costs granted at the conclusion of the hearing of the above entitled action on the 18th February, 1998. The specific items in dispute are later specified but consist of:

3 (a) The Solicitor' instruction fee, and

4 (b) Counsel's brief fees, and

5 (c) Insofar as the motion brought on behalf of the Plaintiff is concerned, the refresher fees allowed to Counsel for the Defendants on the taxation of costs.

6 The substantive proceedings arose from catastrophic flooding in Bray which occurred on the night of the 25th early morning of the 26th August, 1986 during the storm known as "Hurricane Charlie" which struck the East coast and in particular Counties Dublin and Wicklow with great ferocity causing severe flooding in the environs of Bray town and in particular the area known as "Little Bray". Upwards of 500 properties were damaged, consisting of both residential and commercial properties, one of which was the Plaintiff's premises in Little Bray.

7 The ensuing damage led to widespread claims being brought against various insurers, one of whom, Eagle Star, exercised its subrogation rights to seek recompense via Superquinn against the various Defendants herein. It is accepted that, in addition to Superquinn's claim for£250,000, there were many other claims pending against the same Defendants arising from the same flooding, with a total value of approximately £10,000,000. Following the decision of Laffoy J in these proceedings, which was not appealed to the Supreme Court, these other claims were withdrawn.

8 The hearing at different times before Laffoy J lasted for twenty-seven days between the 3rd December, 1996 and the 19th March, 1997. Judgement was reserved and ultimately delivered on the 18th February, 1988. The judgement completely exonerated all of the Defendants from any responsibility and costs, together will all reserved costs, were awarded to the first and fourth named Defendants on the 5th March, 1998.

9 In the hearing before Laffoy J two Senior Counsel appeared with Junior Counsel for Superquinn, as was also the case for Bray UDC. The fourth Defendant was represented by a single Senior Counsel and Junior.

10 The Bills were taxed by the Taxing Master on the 2nd and 3rd February, 1999, following which the Taxing Master delivered a brief ex tempore ruling. Objections were carried in by the parties and these objections were heard on 10th June, 1999. The TaxingMaster's reserved ruling, which he declined to alter any of the allowances in dispute, was delivered on the 23rd July, 1999.

FACTS OF THE CASE

11 The First named Defendant was the sanitary authority for the functional area in which the Plaintiff's premises were situated and was also responsible for planning and directing drainage construction works being carried out in the area by the Third named Defendant under contract with the First named Defendant. The fourth named Defendant was the owner, occupier and body responsible for an artificial lake or reservoir located upstream of the river which ran adjacent to the Plaintiff'spremises..

12 On the night of the 26th August,, 1986, and in the early hours of the following morning during the course of the storm known as Hurricane Charlie, the river burst its banks and caused extensive flooding.

13 The Plaintiff in the proceedings alleged negligence and nuisance against the First, Third and fourth named Defendants, after discontinuing its proceedings against the Second and Fifth named Defendants, for injury and loss caused to its property by the flooding.

14 It was alleged that the First named Defendant caused or contributed to the flooding of its premises because of the manner in which the drainage construction works in the river were being executed prior to the storm, in particular that the river defences were breached and the flow of the river obstructed by temporary works and machinery.

15 The Plaintiff alleged that the Third named Defendant was liable for the manner in which the works were being carried out.

16 On the night of the storm, the dam failed and the Plaintiff alleged that the waters released by the failure joined the river thereby increasing the volume and level of theriver and, in consequence, causing or contributing to the flooding. It alleged that the fourth named Defendant was liable for failing to properly use and maintain the dam and to provide and maintain an effective arrangement for releasing waters from the reservoir when the level of the reservoir rose.

17 In further alleged that the existence of the reservoir constituted an unnatural use by the fourth named Defendant of its land and that this Defendant was liable under the rules in Rylands -v-Fletcher for the escape of water and the resulting flooding of the Plaintiff's premises.

18 In dismissing the Plaintiff's claim, Laffoy J held that the First named Defendants was immune from an action based on nuisance and was free from liability unless it was negligent in the exercise of its statutory duty by virtue of Section 17 of the Public Health (Ireland) Act, 1878. In the absence of proof of negligence, no liability attached to the First named Defendant or to the Third named Defendant, which executed the works under contract with the First named Defendant.

19 She further held that the Plaintiff had not established a causal link between the use and lack of proper maintenance of the dam prior to the storm and to the dam failure. It was the effect of the enormous volume of water flowing over the crest of the dam at the height of the storm that caused...