The Gazette 1974

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.

Robb v. O'Connor,

I.R.

9 Eq. 373, in

which he says at page 380 : "The principle which

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

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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