High Court 

Bloomer and Others v The Incorporated Law Society of Ireland and Others

1994/5680 P 

3 December 1999 

GEOGHEGAN J: 

This is an appeal from a taxation of costs in the above entitled action which was commenced in the High Court but which went ultimately on appeal to the Supreme Court. The items in dispute in the order in which I will be dealing with them are as follows:- 

1. The Solicitor's instruction fee in the High Court. 

2. Senior Counsel's brief fee on the appeal to the Supreme Court. 

3. Senior Counsel's refresher in the High Court. 

4. Senior Counsel's brief fee in the High Court. 

The Plaintiffs were graduates of Queens University Belfast who had attained the degree of Bachelor of Laws (LL B). They sought a declaration that they were entitled to the like recognition and the like exemption from the final examination, first part of the Law Society as is afforded to graduates of the National University of Ireland, the University of Dublin and the University of Limerick who hold a primary degree in law of one of those universities or who hold a primary degree partly in law and in another discipline. They also sought a declaration that the First and Second named Defendants were guilty of wrongful discrimination as regards graduates in law of Queens University Belfast and there was a claim for damages including aggravated and/or exemplary damages for conspiracy and/or breach of duty and/or breach of statutory duty and/or for alleged wrongful interference with the right asserted by some of the Plaintiffs and/or breach of duty under the laws of the European Union and under the European Convention of Human Rights. Although a number of issues were raised at the hearing of the action which came before Laffoy J, the only issue on which the Plaintiffs were successful was in establishing to the satisfaction of the trial Judge that Regulation 15 of the Law Society Regulations of 1991' which excluded Queens University from the exemption was invalid as being discriminatory and contrary to Article 6 of the Treaty of Rome. Laffoy J however refused to make a specific declaration to that effect and made a costs order in favour of the Law Society. The Plaintiffs appealed her order to the Supreme Court and before the appeal came on, the Law Society agreed to amend the regulation and include the students from Queens University for the exemption. For all practical purposes therefore the real issue before the Supreme Court on appeal was the question of costs. Technically, however, the Plaintiffs were requesting the Supreme Court to make a declaration as to the invalidity of the regulation and the Plaintiffs were also pressing for an entitlement to damages for conspiracy. The Supreme Court was less than impressed by the claim for damages for conspiracy but allowed the appeal to the extent of making the declaration as to the invalidity of the regulation and awarding to the Plaintiffs against the Law Society the costs of the High Court on the basis of an eight day hearing and limited to the issue of the invalidity of the regulation having regard to the Treaty of Rome. The Plaintiffs were also awarded half the costs of the appeal but excluding any costs in connection with written submissions made to the Supreme Court. 

All the costs went to taxation and were dealt with by Taxing Master Moran. The Plaintiffs had been represented by one Senior Counsel, Dr White and by Junior Counsel, Mr Horgan instructed by a Cork Solicitor, Mr Denis O'Sullivan. It is not in contention that Junior Counsel should be entitled to two-thirds of the brief and refresher fees of Dr White. The brief fee marked and claimed by Dr White for the High Court hearing was £47,500. The refresher marked for the High Court by Senior Counsel was £6,000 for each day. The Solicitor's instructions fee claimed in respect of the High Court was £210,000 and the brief fee claimed by Senior Counsel for the Supreme Court hearing was £25,000. Each of these claimed figures was substantially reduced by the Taxing Master. Dr 'White himself gave evidence before the Taxing Master from which it emerged that the £47,500 was a kind of aggregate of a real brief fee claimed of £35,000 and a balance for numerous consultation fees which might not otherwise be recoverable. The Taxing Master regarded both figures as far too high and allowed a brief fee of £12,600. In respect of the refresher fees, the Taxing Master reduced the claim of £6,000 for each day to £2,625 a day. The Solicitor's instructions fee claimed at £210,000 was reduced by the Taxing Master to £76,000. Finally, the claimed brief fee for Senior Counsel on the appeal of £25,000 was reduced to £10,000 on taxation. 

In accordance with normal practice the Taxing Master was called upon to review his taxation as a preliminary to any appeal to the High Court and on such review he upheld the original figures fixed by him with the exception of Senior Counsel's refresher in the High Court which he increased from £2,625 to £3,150. 

The Plaintiffs now seek an upwards revision of all four of these sets of figures. The first question which I must consider is what legal principles do I apply to this appeal. It has been pointed out to me that the powers of the High Court in a taxation appeal have been curtailed somewhat by Section 27(3) of the Courts and Court Officers Act, 1995. That sub-section reads 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." 

This sub-section came to be judicially considered by McCracken J in Smyth v Tunney, [1999] 1 ILRM 211 at 213 in the following passage of his judgment:- 

"The principle on which I must act, therefore, is not simply to decide whether the Taxing Master erred, but also, if I am to alter his decision, I must find that his taxation was unjust. I cannot approach this issue on the basis of trying to assess what costs I would have awarded had I been the Taxing Master." 

Kelly J agreed with that statement in Tobin & Twomey Services Limited v Kerry Foods Limited, [1999] 1 ILRM 428 as did Laffoy J in The Minister for Finance v Goodman, (unreported judgment delivered 8 October, 1999) [eIWLR 1519]. In considering whether the Taxing Master erred, I must see whether in arriving at his decision he had regard or excessive regard to some factor which he either should not have had any regard to or to which he should have had much less regard. I then have to consider whether there was some significant factor to which the Taxing Master ought to have had regard and to which he either had no regard at all or insufficient regard. Those are examples of errors of principle in the consideration of the facts but of course the Court must also consider whether the Taxing Master has fallen into error in either law or jurisdiction. 

If this Court finds that the Taxing Master has erred in the sense described, this Court then has to address the second question which is whether the taxation was unjust. In relation to any given item in the taxation which is in controversy, the justice or injustice of the decision will be determined by the amount. If after falling into error, the Taxing Master in fact arrives at the correct figures or at figures within a range which it might have reasonably have been open to him to have arrived at, the Court should not interfere. The decision may not be exactly the same as the decision which the Court would have made but it cannot be described as an unjust decision. 

Parke J's dicta in Irish Trust Bank Limited v Central Bank of Ireland, [1976-7] ILRM 50, that "it is extraordinarily difficult for a judge to attempt to review" a Solicitor's instructions fee has been cited in many cases since. Nevertheless, the Court is obliged to do so if the evidence warrants it. 

It is necessary now to examine how the Taxing Master approached his assessment of the instructions fee but above all how he approached his own review of that taxation. It is clear that he correctly had regard to Best v Wellcome Foundation Limited, [1996] 3 IR 378. At that time the Taxing Master was working off the then unreported judgment of Barron J. On the authority of that decision with which I agree, there are effectively three criteria upon which the fee is determined. These are:- 

1. Any special expertise of a Solicitor. 

2. The amount of the work done. 

3. The degree of responsibility borne. 

After considering these legal principles in his review of the taxation, the Taxing Master observed as follows at p 55:- 

"At the conclusion of the submissions upon hearing of the objections I was of the opinion that the proper and only way to determine a fair and reasonable instructions fee in relation to the work that the case necessitated was to exercise the powers conferred on me in Section 17(1) and (2) of the Court and Court Officers Act, 1995. 

The provisions of these two sub-sections are already set out in detail earlier in this ruling and I do not propose to repeat them. The said Act bestows on the Taxing Master a right to examine the nature and extent of the work carried out by counsel and solicitor and to determine the value of that work in relation to the case. It does not preclude the Taxing Master from following and using the well established legal principles and criteria in this area. This Act gives the Taxing Master in carrying out such examination an insight into the work undertaken and done by the solicitor and to take into account the complexity of the cause, the difficulties and novelty of the issues involved. It also permits him to examine the time and labour expended, the extent and volume of the documentation involved and indeed the importance of the cause or matter to the clients." 

Having carried out that exercise in some detail and having considered the evidence and having regard to the extent of the help given to the Solicitor, Mr O'Sullivan by Senior Counsel, Dr White which eased the burden placed on the shoulders of Mr O'Sullivan, he held to his original view that the sum of £76,000 was reasonable and fair remuneration for the instructing Solicitor. The Taxing Master could find no grounds either on the taxation or on the hearing of the objections "to justify the enormous fee claimed in the bill" and he expressed himself as totally satisfied that the fee claimed was grossly in excess of what was a just, fair and proper instructions fee. The Taxing Master goes into some detail as to the factors he took into account and the cases which he considered relevant in his original ruling on the taxation dated 28 May, 1998 at pp 17-25. It might be argued that to some extent the Taxing Master in the language he has used in his two reports has underplayed the importance of the case, particularly having regard to the special emphasis which he continually places on the word "issue" as appearing in the Supreme Court Order. I will be returning to this in more detail when dealing with Counsel's fees. But I am absolutely satisfied that even if the Taxing Master fell into limited error to that extent the instructions fee allowed to the Solicitor could not possibly be described as unjust. The Taxing Master attached weight and correctly attached weight to the fact that the case was largely Barrister led. These student Plaintiffs were in Belfast. Dr White himself was working in Belfast. Mr O'Sullivan was in Cork. It seems abundantly clear that a large amount of work which might normally be done by a Solicitor was in fact done by Dr White. For example, witnesses' statements were prepared and furnished to Mr O'Sullivan without his having to prepare them. My overall impression is that Mr O'Sullivan's workload was not exceptionally high due in effect to the input of Dr White. A Solicitor cannot be paid for work which he has not done. There is nothing in any of the evidence to suggest to me that an instructions fee of £76,000 was unfair or unreasonable and I would affirm the determination of the Taxing Master in this regard. 

The next item which I intend to deal with is Senior Counsel's brief fee in the Supreme Court. As I have already indicated the Supreme Court appeal was essentially about costs only, though there was also a question which itself was intimately connected to the costs as to what precise form of order should be made. On the appeal the Plaintiffs persuaded the Supreme Court to insert into the High Court Order a declaration that the controversial regulation was invalid. But as the Law Society had changed its regulations in favour of the Plaintiffs before the appeal came on for hearing, the substantive issues in the case were not really addressed in the Supreme Court except insofar as they related to the procedural matter of the form of relief which should be granted in the Order and the question of costs. In these circumstances it was absolutely right that the brief fee on the appeal to the Supreme Court should bear no relationship to the brief fee on the hearing of the action. I can find no error in principle or otherwise and no element of injustice in the fee of £10,000 allowed by the Taxing Master. 

I next turn to the refreshers marked by Senior Counsel in the High Court. As I have already indicated, the Taxing Master originally allowed a refresher of 2,500 guineas. On review he increased that to 3,000 guineas or in other words £3,150. I asked in Court whether there was precedent for any refresher in High Court litigation being allowed on taxation at a higher figure than that. Neither side seem to think that there was. That would also have been my own impression. I do not think that tribunal refreshers which may have been higher can be used as a suitable precedent. In a complex High Court action the complexity should normally be reflected in the main in the brief fee rather than in the refresher as it is the brief fee which covers the preparation for the case. However, in this particular case there were a great deal of matters which had to be freshly attended to as the case progressed. The day to day running of the case was obviously extremely difficult and I think that in all the circumstances the Taxing Master was correct in increasing the refresher fee to £3,150 but I do not see any justification for making it any higher. I would therefore affirm the Taxing -Master's determination on this item also. 

I have deliberately left till last the one item which has caused me most difficulty and that is Senior Counsel's brief fee in the High Court. It may not be an exaggeration to say that this unusual, important and complex case was devised, prepared, managed and ultimately fought by Senior Counsel, Dr White who at all material times as well as being a Senior Counsel in the Irish Bar, was a member of the academic law staff at Queens University Belfast. If a Barrister does work which is normally done by a Solicitor three questions immediately arise:- 

1. Was it unprofessional of the Barrister to have done the work? 

2. Is it to be a relevant factor, for the purposes of devaluing the Solicitor's instructions fee? 

3. Is it to be a relevant factor in increasing the Barrister's brief fee? 

With regard to the first question it goes without saying that there cannot be taken into account in determining a Barrister's brief fee, work which he did contrary to the rules of his profession. But there has been no suggestion here of unprofessional conduct. That does not mean, however, that all work done by Dr White in the case is appropriate to be taken account of in determining his brief fee. Normally it is reasonably clear where the division of responsibility lies. Some work is invariably done by a Solicitor and never by a Barrister. But there are areas of work which a Barrister may in certain cases legitimately do and which may, I think, be taken into account in determining his brief fee even though it goes somewhat beyond the work which a Barrister would ordinarily do in an ordinary case such as for -instance a personal injury action. An example of what I have in mind is a case involving some highly specialised branch of the law such as for instance Patent Law or perhaps Competition Law with which the particular Solicitor who has been instructed is totally unfamiliar. Such a Solicitor, if he is acting prudently, will engage the services of a specialist Counsel. In relation to mounting the action and organising the proofs, that Barrister may well in practice be involved in day to day directions that go far beyond the ordinary pre-trial advice on proofs. Although this case is somewhat different, I think that there are similarities. It does not fit neatly into any regular category of cases. The nearest analogy is a major constitutional action but it would seem to me that there was rather more specialised knowledge required than in most constitutional actions. In order to establish the discrimination, comparative evidence had to be adduced between the law in the Republic of Ireland and the law in Northern Ireland. Dr White was equipped with the specialist knowledge as how to identify and access the appropriate witnesses. There seems little doubt that he put an exceptional amount of sweat and energy into the preparation and conduct of the case. Insofar as he did work which was really pure Solicitor's work, but essentially as a matter of obligement for Mr O'Sullivan, he is not entitled to be remunerated for, it. For example, the taking of statements would not seem to me to be Barristers' work by any stretch of the imagination unless it is done in the context of a consultation in the presence of a Solicitor. By the same token, however, Mr O'Sullivan cannot expect to be paid the same as if he had travelled up to Belfast and taken the statements himself or even took them himself in his Cork office. Work therefore done by Dr White which should properly have been done by Mr O'Sullivan and which even within the element of leeway which 1 have allowed, could not be considered Barrister's work must effectively remain unpaid for. It is important that this principle be upheld as a matter of public policy in the due administration of justice. 

The answers to the two other questions which I posed therefore are that within certain parameters which I have indicated, a Barrister's brief fee may be increased because of unusual work which he did in connection with the case but insofar as it might be work which would otherwise have been done by the Solicitor, it becomes a devaluing element in the Solicitor's instruction fee. I would, however, re-emphasise that a Barrister can never be allowed on taxation a fee or any element of a fee which covered work which he was prohibited from doing by the rules of his profession. 

Although I am satisfied that the Taxing Master considered the question of what was the appropriate brief fee for Dr White in the High Court with the utmost care as he seems to have done in relation to every other item, I think, nevertheless, that in one respect he fell into error. Neither his rulings in the original taxation nor on the review of taxation indicate that he adequately appreciated the importance of the case. This was a class action brought by thirty-five Plaintiffs. If the action had been from the start confined to the single issue referred to in the Supreme Court Order, it would still by any standard be an action of the utmost importance potentially affecting the future livelihoods of the Plaintiffs and boldly attacking the Law Society's admission arrangements, notwithstanding that these were contained in a statutory instrument. The action founded as it was on illegal discrimination was obviously difficult to mount and difficult to conduct. But I do not think that the Taxing Master's comments reflect that fact. He seems to put a lot of emphasis on the word "issue" as though the costs he was allowing were what might conventionally be called simply the costs of an issue or in other words some kind of subsidiary element of costs in the case. What was allowed to the Plaintiff was the costs of an eight day action claiming the invalidity of the relevant regulation on the grounds of discrimination. If I am right in my view that the Taxing Master fell into some error in failing sufficiently to appreciate the importance of the case, I have now to consider whether the brief fee allowed to Dr White was unjust. I think that on balance it was. If these Plaintiffs had had solicitous parents, willing to pay for Counsel whether they won or lost, I do not think that a Solicitor would be unreasonable in approving a brief fee of say 20,000 guineas or in other words £21,000. It emerged from the evidence in this case that the real brief fee of Dr White's, as marked, was £35,000 rather than the higher figure originally indicated. But I think that that figure is also too high. On the other hand I think that the figure fixed by the Taxing Master is too low. Nor do I think that the figure fixed by the Taxing Master is within such a reasonable range that I should not interfere with it. I would substitute a figure of £21,000 as a brief fee for Dr White in substitution for the £12,600 fixed by the Taxing Master. 

In every other respect I affirm the taxation. 

There is only one other matter to which I would like to refer. Reliance was placed by the Defendants, and to some extent I think by the Taxing Master, on the amount of fees marked by Counsel for the Defendants. The Defendants engaged two Senior Counsel and their combined fees are less than the fee I am now allowing Dr White. I think that it has always been held that regard should be paid to the fees marked by the other side in a taxation but the Courts have never gone further than that. I think that this was a more difficult action to mount and fight than to defend. The Taxing Master was clearly of that view himself, having regard to the substantial differential between the refreshers. Where two comparable commercial companies are litigating against each other the fees marked by Counsel for the unsuccessful party may well be highly relevant as in that case there could be no extraneous circumstances affecting the amount of fees marked. But in a case such as this the two sides are in quite different positions and I think that little or no value can be attached to the evidence of the fees marked by Counsel for the Defendants.