The Gazette 1976

GAZETTE

UNE

LY 1976

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

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

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

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

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

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

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