The Minister for Finance v Laurence Goodman, Goodman International and Subsidiary Companies (No. 2)

JurisdictionIreland
Judgment Date08 October 1999
Date08 October 1999
Docket Number[1998 Nos. 60, 61, 62 & 63 MCA]
CourtHigh Court
Minister for Finance v. Goodman (No. 2)
The Minister for Finance
Applicant
and
Laurence Goodman, Goodman International and Subsidiary Companies, Respondents (No. 2)
[1998 Nos. 60, 61, 62 & 63 MCA]

High Court

Practice - Costs - Taxation - Review - Tribunal of Inquiry - Principles to be applied - Burden of proof - Tribunals of Inquiry (Evidence) (Amendment) Act, 1979 (No. 3), s. 6(1) - Courts and Courts Officers Act, 1995 (No. 31), s. 27 - Rules of the Superior Courts, 1986 (S.I. No. 15), O. 99, r. 38(3).

Section 6(1) of the Tribunals of Inquiry (Evidence) (Amendment) Act, 1979, provides:-

"Where a tribunal....is of opinion that, having regard to the findings of the tribunal and all other relevant matters, there are sufficient reasons rendering it equitable to do so, the tribunal may by order direct that the whole or part of the costs of any person appearing before the tribunal by counsel or solicitor, as taxed by a Taxing Master of the High Court, shall be paid to the person by any other person named in the order."

Order 99, r. 38(3) of the Rules of the Superior Courts, 1986, provides:-

"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 … 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."

The tribunal of inquiry into the beef industry awarded the respondents the costs of their representation before it, pursuant to the provisions of s. 6(1) of the Act of 1979. The costs were awarded on a party and party basis, and were to be taxed by the Taxing Master of the High Court. The Taxing Master duly taxed the costs of the respondents. The applicant objected to certain allowances made by the Taxing Master. The Taxing Master disallowed all of the objections, and affirmed his allowances. The applicant then applied pursuant to O. 99, r. 38(3) to the High Court to have certain items of the taxation reviewed.

On the hearing of the review, the applicant sought to argue certain grounds which had not been contended for before the Taxing Master. The respondents objected to those grounds being advanced by the applicant, as they had not been advanced before the Taxing Master.

The State, at the tribunal, had objected to the same firm of solicitors acting for the respondents in respect of the general issues raised and the export credit issues raised. Consequently, a second firm of solicitors was retained by the respondents in order to deal with the export credit issues. The Taxing Master had not applied s. 27 of the Act of 1995, to the taxation in respect of the general issues, as that taxation had commenced before the statute had come into effect. The Taxing Master did consider the section in respect of the taxation of the export credit issues, as that taxation commenced after the statute had come into force. The applicant sought to have the entire review conducted without reference to s. 27, as not to do so would be to give retrospective force to the section.

The applicant further submitted that the Taxing Master had wrongly placed emphasis on an assumed "duality of purpose" of representation before the tribunal, which it was assumed involved preparing the client's case and also assisting the tribunal in its work.

In reply, the respondents contended that the court should be slow to interfere with the decision of the Taxing Master, and should only do so if he had acted unreasonably in the sense of being clearly wrong. The respondents further submitted that the court should have regard to recent authorities which manifested judicial restraint in relation to the decisions of expert administrative tribunals.

Held by the High Court (Laffoy J.), in reviewing the costs allowed by the Taxing Master, 1, that there was no suggestion in the authorities that under the Rules of Court currently in force, that the court was only entitled to intervene where the Taxing Master had proceeded upon a wrong principle.

Dunne v. O'Neill [1974] I.R. 180, Kelly v. Breen [1978] I.L.R.M. 63 and The State (Gallagher Shatter & Co.) v. de Valera[1991] 2 I.R. 198 considered.

2. That in the case of all solicitor's disbursements, not just disbursements by way of counsel's fees, the function of the Taxing Master was to determine whether no solicitor acting reasonably carefully and reasonable prudently, based on his experience in the course of practice, would have made the disbursement in question.

Staunton v. Durkan [1996] 2 I.L.R.M. 509 applied.

3. That in the case of reviews of taxation under O. 99, r. 38(3), there was an established body of jurisprudence directly in point. It was therefore unnecessary and inappropriate to apply principles extrapolated from a novel and developing jurisprudence which was founded on a variety of statutory appeals from decisions of statutory tribunals and regulators.

4. That it was clear that the court was entitled to review, in the sense of alter, the Taxing Master's determination if it was shown that he had erred in principle, or although applying correct principles, he arrived at the incorrect amount for any item in the bill.

5. That, if on applying the standard of proof applicable to civil matters namely, proof on the balance of probabilities, the court was satisfied that error had been shown, it had to intervene, and as required by O. 99, r. 38(3), substitute for the decision of the Taxing Master, an order which achieved a just result.

6. That it was acknowledged on behalf of the applicant that on the review he bore the burden of disturbing the decision of the Taxing Master as to the appropriate allowances.

7. That arguments which had not been advanced before the Taxing Master could not be entertained on the hearing of the review.

O'Sullivan v. Hughes [1986] I.L.R.M. 555 and In re Kevin J. Walshe(1962) 96 I.L.T.R. 173 followed.

8. That as a matter of common sense and practicality, it would be absurd to adopt a different approach to the taxation of the general issues and the taxation of the export credit issues. The same regime applied to the totality of the disbursements, and the relevant regime to apply was a pre-Act of 1995 regime.

9. That it was a misconception to perceive a lawyer representing a party before a tribunal as having some particular function of assisting the tribunal in carrying out its remit.

In re Greene & Sons and Dublin Corporation [1940] I.R. 484distinguished.

10. That it was well established that, while on a party and party taxation the party awarded the costs was not entitled to a full indemnity in respect of all costs and expenses which had actually been incurred by him, the basis of party and party costs was one of indemnity.

Attorney General (McGarry) v. Sligo County Council [1991] 1 I.R. 99and Kelly v. Breen [1978] I.L.R.M. 63 considered.

11. That in the context of the taxation of costs of this particular tribunal, it was proper to take account of the differences between the process in a court in a lis inter partes and the tribunal process.

Cases mentioned in this report:-

Attorney General (McGarry) v. Sligo County Council [1991] 1 I.R. 99; [1989] I.L.R.M. 768.

Best v. Wellcome Foundation Ltd. (No. 3) [1996] 3 I.R. 378; [1996] 1 I.L.R.M. 34.

Dunne v. O'Neill [1974] I.R. 180; (1974) 109 I.L.T.R. 101.

Goodman International v. Mr. Justice Hamilton [1992] 2 I.R. 542; [1992] I.L.R.M. 145.

In re Greene & Sons and Dublin Corporation [1940] I.R. 484.

Henry Denny & Sons (Ireland) Ltd. v. Minister for Social Welfare [1998] 1 I.R. 34.

Irish Trust Bank v. Central Bank of Ireland [1976-7] I.L.R.M. 50.

Kelly v. Breen [1978] I.L.R.M. 63.

Kelly (an infant) v. Hoey (Unreported, High Court, Butler J., 2nd December, 1973).

In re Kevin J. Walshe (1962) 96 I.L.T.R. 173.

Lavan v. Walsh (No. 2) [1967] I.R. 129.

M. & J. Gleeson v. Competition Authority [1999] 1 I.L.R.M. 401.

Minister for Finance v. Flynn (Unreported, High Court, Carroll J., 9th February, 1996).

Orange Communications Ltd. v. Director of Telecommunications [1999] 2 I.L.R.M. 81.

O'Sullivan v. Hughes [1986] I.L.R.M. 555.

Smyth v. Tunney [1993] 1 I.R. 451.

Smyth v. Tunney (No. 2) [1999] 1 I.L.R.M. 211.

Staunton v. Durkan [1996] 2 I.L.R.M. 509.

The State (Gallagher Shatter & Co.) v. de Valera [1991] 2 I.R. 198.

Tobin & Twomey Services Ltd. v. Kerry Foods Ltd. (No. 1) [1999] 1 I.L.R.M. 428.

Motion on notice.

The facts have been summarised in the headnote and are more fully set out in the judgment of Laffoy J., infra.

By motion on notice dated the 28th May, 1998, the applicant sought to have the costs awarded by the Taxing Master on the 29th July, 1994, reviewed pursuant to the provisions of O. 99, r. 38(3) of the Rules of the Superior Courts, 1986.

The case was heard by the High Court (Laffoy J.) on the 20th, 21st, 22nd and 23rd April, 1999.

An interim ruling was delivered on the 19th May, 1999, allowing for oral evidence to be adduced at the hearing of the review. The case was further heard on the 16th, 20th, 21st, 22nd, 23rd and 27th July, 1999.

Cur. adv. vult.

Laffoy J.

8th October, 1999

The Applications

This judgment is concerned with four applications by the applicant pursuant to O. 99, r. 38(3) of the Rules of the Superior Courts, 1986, to review the taxation of certain items allowed by the Taxing Master on the taxation of the following costs, namely:-

  • (1) The costs of the first respondent in respect of export credit insurance issues (Record No. 1998 No. 60 MCA);

  • (2) The costs of the first respondent in respect of general issues, i.e., matters other than export credit insurance issues (Record No. 1998 No. 61 MCA);

  • (3) The costs of the second and third respondents in respect of export credit insurance issues (Record No. 1998 No. 62 MCA); and

  • (4) The costs of the second and third respondents in respect of general issues, i.e., matters other than export credit...

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