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tion of whether to make disallowances the Taxing
Master should have regard to (a) the amount of work
involved for counsel including the presentation of the
case and his barristers as to marking fees insofar as
accepted by solicitors in practice. He suggested that the
scales of fees adopted by the Bar for High Court and
Circuit Court work were a matter of personal considera-
tion by the Taxing Master as also the fees paid to the
Counsel for the opposing party in the same matter sub-
ject to whatever factors might be special to the case.
Mr. O'Shaughnessy contended that the fee payable to
Counsel prima facie is a solicitor and client item and
therefore recoverable by the solicitor from his own
client. He suggested that the client might recover from
the opposing party against whom the order for costs
has been made a contribution only towards his costs
of such amount as the Taxing Master in his discretion
might allow. He submitted that the only matters for
consideration of the Taxing Master in the exercise of
such discretion are the importance of the case and its
difficulty.
Having regard to the decision of Budd J. in
re Kevin
J. Walshe,
96 I.L.T.R. (1962), 173, I came to the con-
clusion that it was desirable that I should have heard
the evidence of the nature which had been given to the
Taxing Master on the taxation and on the hearing of
the objections. I considered also that only so much of
the evidence of Mr. Conor Ryan as conformed with the
evidence given by Mr. Kevin White in relation to mat-
ters upon which he had given evidence before the
Taxing Master might be considered by me.
In my view
any evidence which enables the Taxing Master to exer-
cise his discretion in conformity with the standards of
the practising solicitor who is reasonably careful and
reasonably prudent, without erring on the side either of
over-caution or of excess is pertinent and admissible.
The discretion invested in the Taxing Master is of a
judicial nature and accordingly should be exercised by
him without any element of predetermination or rule of
thumb
or indeed any arbitrary or capricious determ-
ination. The standard set for him throughout the rules
in Order 99 of the Superior Court Rules and in the
many decisions of the Courts which emphasise his
qualifications for the function of his office are the
standards of the practising solicitor.
During the hearing of this application I had occasion
more than once to point out that neither the Taxing
Master on the taxation of the costs, nor this Court on
the review of the taxation, was in any way concerned
with the determination of the fees to which counsel
might be entitled, nor with an assessment of the amount
of the fee which counsel might require to be paid.
It is
no part of the function of the Taxing Master on taxation
of the costs nor of the Court on a review of the taxation
to examine the nature or quality of the work done by
or required of counsel, nor to assess by measurement of
fees the value of counsel's work.
The sole matter with
which the Taxing Master is concerned in respect of
the items the subject matter of this application is
whether to allow in whole or in part disbursements made
by the solicitor in the course of his practice in respect of
fees to counsel retained by him in the action in accor-
dance with the rules relating to party and party taxa-
tion. The significance of the fact that these items are
disbursements made by the solicitor is underlined in the
frequently quoted passage from the judgment of O'Sul-
livan M
.R.
in
Robb v. O'Connor,
I.R.
9 Eq. 373, in
which he says at page 380 : "The principle which
I
think should be acted on and I am prepared to enforce
is this—that if a solicitor, acting bona fide within the
rule I have above stated, delivers a brief with the fee
marked thereon to counsel, prima facie that fee ought
to be allowed, even in party and party costs; otherwise
the solicitor must be exposed in every case to the risk
of having to pay out of his own pocket money which
he honestly and bona fide paid to his counsel, unless he
has. taken the precaution of fixing the fee beforehand
with his client." Because these items are disbursements
made by a solicitor in the course of his practice m
respect of fees to counsel retained by him on his client s
behalf the amounts of the disbursements should be
assessed on the basis of what a practising solicitor who
is reasonably careful and reasonably prudent would
consider a proper and reasonable fee to offer to counsel.
This standard does involve having due regard to
the changes in what the practising solicitor considers to
be reasonable derived from his day-to-day and year-to-
year experiences in the course of his practice.
The principle for so long proposed by the
Courts to the Taxing Masters is that they should
have regard "to the magnitude of the case and
the nature of
the questions involved
in it' •
As stated in a much-quoted extract from the judgment
of Kenny J. in delivering the judgment of the Court of
Kings Bench Division in
Barry v. Spaight and Sons,
1904, 2 I.R. 478, at 486, the Court will interfere with
the decision of the Taxing Master "if the Court comes
to the conclusion that he has failed to adequately
recognise the gravity, perplexity, and difficulty—in other
words, the magnitude of the case". This statement of
principle was adopted by the Supreme Court in both
the dissenting judgment of Maguire C.J. and the judg-
ment of the Court delivered by O Dalaigh J. in the
Attorney-General
v. Simpson
(Number 3), 1963, I.R-
329. But it appears evident to me from these judg-
ments in Simpson's case that this principle is intended
as an indication of the factors affecting the judgment of
a solicitor in practice in determining what would be a
reasonable fee to offer to counsel. To construe this
statement of principle as an indication to the Taxing
Master as to how he should determine by reference to
the nature or value of the work required of counsel
the amount of the fee to be paid to counsel is quite
erroneous in my view. The effective purpose of this
principle is to guide the practising solicitor in the selec-
tion of counsel competent in the field of work to which
the brief relates and in the determination of the fee
which such a counsel would be content to take. Put in
another way the solicitor in the course of his practice
would estimate the fee which, having regard to the
principle stated, counsel appropriate to the brief would
be content to take for that brief. Authority for this
concept of the "hypothetical counsel" who would be
capable of conducting the particular case efficiently and
who would not demand a particularly high fee because
of his special reputation or other extraneous reason i
s
to be found in
Simpson's Motor Sales
(London)
Limited
v. Hendon Corporation
(Number 2), 1965, 1 W.L.R-
112.
Since the adoption of the present rules of the Supe-
rior Courts governing taxation of costs the Court is no
longer confined upon a review of a taxation of the
Taxing Master to circumstances involving an error in
principle on the part of the Taxing Master. This has
been demonstrated in the very careful analysis of the
present rules as compared to the former Supreme Court
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