On 15 June 2017, Ms. Justice Laffoy delivered Judgment on behalf of the Supreme Court in respect of the appeal of the decision of the Court of Appeal in the matter of Sheehan v Corr [Appeal No. 94/16]. This Supreme Court decision, in which Hayes solicitors acted for the Defendant/Appellant, provided much needed clarity on the approach to be adopted when adjudicating on legal costs.
In their detailed and complex judgement, the Supreme Court found:-
- That it was satisfied that the bill of costs in its construction as presented by the Plaintiff was in compliance with Order 99 Rule 29 subsection 5 of the Rules of the Superior Court. There was no requirement, as suggested by the Court of Appeal, in setting out the particulars of services charged, to include the amount of time undertaken in respect of each activity, the seniority of the solicitor carrying such activity and the professional charges of each activity which may include an hourly rate for such solicitor.
- That it was satisfied that time as a factor should not be elevated above all other factors as set out in Order 99 Rule 38 subsection 22 (ii) of the Superior Court Rules. The amount of time actually spent on a case is only one element of the relevant circumstances by which the nature and extent of the work done is assessed. As set out in that subsection, among the factors that the Taxing Master should also take into account include the complexity of the matter, the difficulty or novelty of the questions involved, the skill and specialised knowledge required and the number and importance of the documents prepared or perused.
- Specifically in relation to time, the Taxing Master should have made available to him/her supporting documentation which may be in the form of contemporaneous records of time spent or a document estimating the time spent based on other contemporaneous evidence. At the discretion of the Taxing Master, supporting documentation might also be in the form of a retrospective reconstruction of the time spent on the work done. It is for the Taxing Master to assess the evidential value of the documentation available in support of the costs claimed. The Supreme Court made it clear that there is no obligation on either solicitors or barristers to keep a record of hours in respect of their work or to set out time spent in the bill of costs, however, the Court commented that it is undoubtedly in the interests of a solicitor or barrister that time records or other documents containing accurate and credible evidence of time spent are available to the Taxing Master.
- General economic conditions are relevant to the proper assessment of the solicitors’ general instructions fee or a barristers’ fee and the impact of a change in the economic climate on such fees is to be assessed by reference to appropriate evidence. The Supreme Court found that it would not be appropriate to be prescriptive as to the nature of the evidence which could be put forward in this regard, but suggested that the relevant professionals (i.e. solicitors, barristers and legal costs accountants) would be in a position to furnish the appropriate evidence of the relevant market.
- It is within the discretion of the Taxing Master to disallow the costs of two senior solicitors dealing with part of a case but he must do so in a manner which he considers to be fair and reasonable.
- By way of obiter dictum, the use of comparators in taxations, if used properly, would most likely be a valuable guide to the assessment of a fee and the Court commented that at a minimum such an exercise is a useful sense check and may be more easily and cheaply carried out than an in depth analysis of time sheets.
Ultimately, the Supreme Court concluded that the refusal to allow for “two senior solicitors” be remitted to the Taxing Master given the specific facts of this case and also found that the Taxing Master had not explained adequately the conclusion reached by him in respect of the assessment of the general instruction fee in 2011 and held that it was best from the perspective of the Taxing Master to look at the entire instructions fee allowed for the Plaintiff covering the period 2008 to 2011.
The Supreme Court also observed the need for legislation to update the Rules of the Superior Courts in respect of costs, noting with concern that in this particular case, even discounting judicial involvement, the taxation and review were at hearing for 7 days.
This landmark Supreme Court judgment has not only removed any uncertainty surrounding the construction and presentation of Bills of Costs to the Taxing Master but has also provided clarity on the approach to be adopted to costs by the Taxing Master in reaffirming the principles outlined in Herbert J.’s judgment in C.D v. The Minister for Health  IEHC 299.
For further information, please contact Ciarán O'Rorke at Hayes solicitors.
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About the Author
Ciarán is a consultant in the Healthcare team at Hayes solicitors. Ciarán specialises in medical negligence and has more than 30 years’ experience of acting on behalf of healthcare professionals, doctors and hospitals in medical and dental actions. His experience of complex high value claims includes many of the major brain damaged infant and cerebral palsy cases.