by Mary Hough March-18-2015 in Healthcare Law
The judgment of Mr Justice Nicholas Kearns in this case represents a significant decision of the High Court regarding costs, and more particularly, the issue of appropriate legal fees. Hayes successfully represented the Defendant in this case.
The solicitors on behalf of the Plaintiff, Augustus Cullen Law (“ACL”) brought an application pursuant to Order 99, rule 38 (3) in order to review the rulings of the Taxing Master in relation to their instruction fee in this medical negligence case. The Defendant was represented by Hayes solicitors. In delivering the judgment of the Court, Mr Justice Kearns upheld the Taxing Master’s decision reducing the fees claimed by ACL from €485,000 to €276,000. The figure of €485,000 had been based on a solicitor’s instruction fee of €375 per hour. Mr Justice Kearns noted the Taxing Master allowed a brief fee of €65,000 plus daily refresher fees of €3,500 for Senior Counsel, Denis McCullough SC, who accepted this figure and no challenge was made to that figure in this review.
A number of arguments were canvassed by ACL in respect of the flawed approach of the Taxing Master which were dismissed by the Court.
Firstly, the Court, in agreement with the Taxing Master, did not accept that the case was particularly complex or novel. The Court held that the mere fact that a condition is rare and unusual does not necessarily render the case more complex in terms of work or preparation.
ACL also argued that the Taxing Master had failed to pay adequate regard to cases where larger fees were measured or agreed, even in the aftermath of the economic downturn. However, Mr Justice Kearns noted that historical comparators are of limited value where a major financial and economic catastrophe has affected the national finances. He further stated that “Comfortable assumptions that the calculation of fees for legal services should simply continue as heretofore, without the slightest regard to the privations experienced by citizens, including those rendering professional services, does not in the Court’s view serve the interests of justice”.
Interestingly, Mr Justice Kearns suggested a practice whereby the Taxing Master, on an annual basis, could consult with an economist whose report could inform him of the extent of cuts in remuneration for professionals. This could then constitute guidelines which practitioners could consult prior to taxation.
The Court also rejected claims that this was a “David and Goliath” situation between the two sides in this case noting that ACL is one of the most experienced firms in Ireland when it comes to dealing with Plaintiff medical negligence litigation and that Counsel on behalf of the Plaintiff is perhaps the “foremost Senior Counsel” practising medical negligence litigation in the country.
The decision highlights the importance of appropriate time-recording for the purpose of the taxation process. In this instance, aside from time records accounting for the final few months of the case, ACL provided an “unhelpful estimate” of between 1,000-1,200 hours expended on the file without any breakdown with regards to specific portions of work. The Court held that this estimate was both unreliable and unacceptable. The Court also noted that a certain degree of double charging was evident. The Court went on to emphasise the importance of recording adequately:
- What work was done
- Who did it
- How long it took
- The appropriate rate for the nature of the work.
Finally, the Court held that the Taxing Master was not obliged to make allowances for the fact that the case was taken on a “no foal, no fee” basis as ACL had not made reference to any legal principle or authority to justify an uplift of fees on this basis. The Court also held there was no basis on which ACL should receive an additional €100,000 by reference to “intangibles”.
The court therefore dismissed the appeal and costs were awarded in favour of the Defendant. The case is now under appeal to the Court of Appeal.
For further information please contact Mary Hough mhough@hayes-solicitors.ie at Hayes solicitors.
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About the Author
Mary Hough
Mary is a partner and Head of the Healthcare team at Hayes solicitors. She specialises in professional indemnity defence litigation and in particular dealing with high value clinical negligence claims. Mary has extensive experience in civil litigation, acting for insurance companies, indemnifiers and plaintiffs.