The Gazette 1976

J UNE /J U LY 1976

GAZETTE

instruction fee considerably, Parke J. is not prepared to intervene, as no wrong principles have been applied. No solicitor however pru- dent and moderate could be allowed by a Court to set the standard for his own profit and remuneration where the Taxing Master rules otherwise. In Lavan v. Walsh (No. 2) — (1967) I.R. 129 — Kenny J. had criticised the in- clusion of an elaborate Preamble in the Bill of Costs to the item relating to Solicitor's fees for in- structions; Parke J. disagrees with this statement, and states that in a case of such magnitude, a detailed Preamble was vital to understand the issues. However the language of the Preamble could be modernised. Irish Trust Bank Ltd. v. Central Bank of Ireland — Parke J. — un- reported — 12th March, 1976. CRIMINAL LAW Convictions quashed by Supreme Court because District Justice con- victed and sentenced the accused in the absence of their solicitor The two accused were on the 29th day of January, 1975, convicted by District Justice P. O'Reilly in Rath- farnham District Court and sen- tenced to six months detention in Saint Patrick's Institution in respect of an offence of stealing a motor car to which they had pleaded guilty. They were also sen- tenced to six months detention in Saint Patrick's Institution in respect of an offence of causing malicious damage to a motor car which sentence was to run concur- rently to the first six months. Both accused were also sentenced to six months detention in St. Patrick's Institution for stealing a motor car and this was to run concurrent with the first sentence imposed. The accused Healy was on the 15th day of January, 1975, sen- tenced to 3 months detention in St. Patrick's Institution on a charge of breaking and entering with intent to steal to which he had pleaded guilty on the 12th day of June, 1974. Both accused on the 30th day of December, 1974, before the Respondent District Justice at Kil- mainham District Court applied for and were granted certificates for Legal Aid under the provisions of the Criminal Justice (Legal Aid) Act, 1962. A Solicitor was assigned to them but apparently at this 11

conditions, which were disallowed by O'Keeffe P. (see Gazette, January, 1974, p. 19). The defen- dants have endeavoured to argue that Gannon J.'s decision in Dunne v. O'Neill — (1974) I.R. 180 — Gazette, May, 1974, p. 121—which restored Counsel's fees in full, was erroneous. As Gannon J. stated on page 189 — "It is no part of the function of the Taxing Master on a review of costs, to examine the nature or quality of work done by Counsel, or to assess the value of Counsel's work. The Taxing Master devotes 10 pages of his report to a review of a large number of cases which appear to contradict the decision in Dunne v. O'Neill. The propriety of a Taxing Master re- porting to a High Court Judge that another Judge of that Court was wrong in law is very much open to question. This is not a case where the principle of "Stare Decisis" should be departed from. Almost all the cases cited in Court had been cited in Dunne's case. Parke J. is satisfied that he should follow the principles in Dunne v. ONeill. The Taxing Master's discretion is a judicial one and is therefore exercisable only in accordance with judicial principles. The Taxing Master in his report has con- tinuously emphasised the magni- tude and public importance of this case. The following decisions were made in relation to individual items on taxation:— (1) Case sent to counsel before institution of proceedings. It is doubtful whether the plaintiff should make his own case at his own expense, but nevertheless this item will be disallowed. (2) Counsel's fees for settling the Plenary Summons were reduced from £10.50 to £7.35. This reduc- tion will be disallowed. (3) Counsel's fees for settling the Statement of Claim — in this case the fee for two Senior Coun- sel was reduced from £26.25 to £10.50 each. As this case required the greatest care in pleading, this reduction will be disallowed. (4) Counsel's fees for settling the Reply to the Defence. Here the Taxing Master only allowed the fee to one of two Senior Counsel, and reduced this fee from £10.50 to £5.25. Counsel were obliged to deal with various difficult points in the defence. Accordingly the fee of £10.50 will be restored in full, and will be payable to two Senior Counsel. (5) Counsel's fee on settling

Affidavit of Documents. Here the Taxing Master disallowed alto- gether the fees claimed by two Senior Counsel. In this case the defendants maintained serious allegations against an individual connected with plaintiff's bank, and it was necessary for plaintiff's solicitor to make a number of inquiries which brought many documents to light. The fee of £26.25 claimed for the necessary assistance of Senior Counsel, is the least that a reasonably careful or prudent solicitor would expect to disburse on obtaining the proper services of counsel. The reduced fee of £18.90 awarded by the Taxing Master to Junior Counsel will be disallowed, and the fee of £26.25 restored to Senior Counsel and to Junior Counsel. (6) Counsel's fees on the brief, and instructions for a third Senior Counsel. The Taxing Master would not allow the fees of a third Senior Counsel, stating that two Seniors and one Junior Counsel were all that were required for the case. The briefing of three Senior Counsel is unusual, but in view of the magnitude of this case, it should be allowed. The principle applicable is that if either party is confronted with an extremely dif- ficult and complicated case pre- sented on the pleadings by the other party, he is not obliged to cut his cloth to suit his opponent's purse. After a five-day hearing, despite defendant's imputations, the Court vindicated the plaintiff's rights. Much the greater part of the ex- pense involved was due to the course unsuccessfully adopted by the defendants. The fees claimed for instructions on the brief in respect of each Senior was £787,50 and £525 in respect of Junior Counsel. This was reduced by the Taxing Master in respect of each Senior to £440, and to £294 in respect of Junior Coun- sel. The fees originally claimed were reasonable in view of the magnitude of the case, and will be restored. Refresher fees in respect of each Senior Counsel of £262.50 were first reduced by the Taxing Master to £140, and subsequently on the rehearing before him to £210. These refresher fees are moderate and will be fully restored. (7) In the case of the solicitor's instructions fee, a Judge should not normally interfere with a Taxing Master's discretion in view of his wide experience. Despite the fact that the Taxing Master has cut the