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In a High Court appeal earlier this year against a decision of
the former Taxing Master, Kearns J clearly re-stated the law and
approach of the High Court towards the measurement of legal costs.
The claim related to a road traffic accident in which an
out-of-court settlement of €800,000 was reached.
The plaintiff's solicitors claimed the costs of
€406,000.51, including an instruction fee of
€240,000. The Taxing Master awarded the sum of
€212,000 for the instruction fee which the defendants
challenged. Kearns J found that the former Taxing Master had
erred in failing to apply the criteria as set out in the High Court
jurisprudence. Furthermore, he concluded that the
mathematical formula used by the former Taxing Master was
inappropriate and remitted the matter to the new Taxing
Master.
The key points from Kearns J judgment are as follows:
1. The Rules of the Superior Courts and the jurisprudence
of the High Court require that the Taxing Master ascertain (1) what
work was done by the solicitor and whether a special skill was
required in the commission of such work, (2) the nature of that
skill, and (3) the reason why such skill was necessary.
2. The former Taxing Master erred by suggesting it would be
inappropriate for him to estimate the time spent by the
plaintiff's solicitors on a piece of work. Current High
Court jurisprudence indicates that what a person did and how long
it took are the most elementary inquiries in evaluating the
work.
3. Comparator cases may be used for broad guidelines to a
Taxing Master in relation to costs.
4. A party seeking his costs is only entitled the bare
essentials required to conduct the litigation. Family and
personal matters of a plaintiff are not appropriate for party and
party taxation, and are not relevant to the issue of
costs.
Importantly, Kearns J also indicated that the level of costs
allowed during years of prosperity may no longer be appropriate in
times of grave hardship. Further, that it is not clear to him
if the current stream of financial crisis is factored into the
taxation process and noted that there appears to be a strong case
for arguing that it should be.
This decision gives a clear insight into the High Court's
attitude to determining the appropriate level of legal costs.
It serves as a warning to solicitors when preparing their Bill of
Costs not to exaggerate or include unnecessary costs.
Excessive solicitors' instructions fees and Counsels' brief
fees will be reduced. The starting point for assessing the
appropriate level of fees will be the 'work done'
principle.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
