The Gazette 1974

rules to be found in the judgment of Kenny J. in

Davan v. Walshe

(Number 2), 1967, I.R. 129. Accord-

gly, as Kenny J. did in that case, I propose in this

matter before me to reconsider the matter of these dis-

allowances on the taxation before the Taxing Master, all

which are concerned only with disbursements of fees

to counsel. In doing so I have regard to the fact that the

Taxing Master is very experienced in this work and

Particularly qualified by his previous practice as a soli-

ctor for that function. I appreciate therefore the con-

siderable assistance I have received from counsel for

both parties on this motion and the care taken to put

before me by way of evidence matters pertinent to my

consideration which had not been so fully presented to

fhe Taxing Master. On the matter of the depreciation

•n the value of money insofar as it may be considered a

Pertinent factor I have had some evidence which was

JJ°t before the Taxing

Master. The

evidence

before me has clearly demonstrated that the

continuing

and accelerating depreciation in the value of money is

matter of real significance to the solicitor in practice

today in every aspect of his work.

I am satisfied that

'He practising solicitor in contemplating the "hypothe-

hcal counsel" with a view to assessing the reasonable

fee which he would be content to take would have

regard instinctively if not deliberately to the depreci-

ation in the value of money. As correctly pointed out

by Mr. O'Shaughnessy this is not a factor which can or

should be measured by any purported scale of percen-

ges taken from statistics, nor is it capable of measure-

ment with any degree of precision. Nevertheless, it is

Part of the reality of the daily life of the reasonable

°licitor in his everyday practice. I accept as correct

'He submission by Mr. Mackey that the Taxing Master

may not only be guided by his own previous experience

a s

a solicitor but must also keep himself informed of

'he practices of solicitors in up to date circumstances as

t o

what is reasonable and that he should have regard

the practices of barristers in marking fees insofar as

cepted by solicitors in practice. Although Mr. Mackey

has suggested that for the purpose of so keeping himself

mformed the Taxing Master should have reference to

'he scales of fees adopted by the bar in general meeting

°r High Court and Circuit Court work and to the

ale of allowances in respect of counsels' fees in the

refes of the Circuit Court and also to the fees paid to

bis own counsel by the solicitor opposing the costs on

xation, I do not think it necessary or appropriate that

1 should outline or limit in any way the manner in

^hich the Taxing Master should keep himself informed

P to date of the standards of solicitors in practice.

It is

^ential, however, to bear in mind that the Taxing

Master adopts the standard of the practising solicitor

^ho is reasonably careful and reasonably prudent rather

'Han that he purport himself to prescribe the standards

*hich he requires solicitors to adopt.

I will now endeavour myself to apply this standard to

'be consideration of the items on the bill of costs before

ree in relation to which the disallowances of the Taxing

Master are challenged. The first item is Number 39

being a disbursement of 12 guineas to senior counsel

advices of proofs. Although the bill of costs appears

show a disallowance of 2 guineas, which in the

Phrase used in

Robb v. Connor

, I.R. 9 Eq. 373, would

be "clipping" or "shaving" fees, it appears from the

report of the Taxing Master that at each stage of the

xation he considered 12 guineas a reasonable disburse-

ment under this heading. Accordingly it suffices to point

out in respect of this item that an error was made on

the bill of costs at this item and that the full 12 guineas

claimed by the solicitor was intended by the Taxing

Master to be allowed.

In regard to the items Numbers 75 and 77 on the

bill of costs which are concerned with the disallowances

of disbursements for fees to counsel for a consultation

held prior to the advising of proofs it appears to me

that Mr. Mackey is correct in his contention that the

Taxing Master misunderstood the nature of the matter

and the purpose of this consultation and appeared to

determined the allowances by rule of thumb. Reference

to pages 15 to 18 of the bill of costs shows that there

were special considerations and unusual circumstances

relating them to the matter of the plaintiffs' own plead-

ings and not merely to a consideration of the defence de-

livered with a lodgment. It is evident that the plaintiff's

own circumstances had changed in a serious manner by

reason of his injuries and the nature of the matter to

be stated in the pleadings was a matter of technical

nature which required special consideration in relation

to which assistance of medical experts was required and

obtained. In these circumstances it appears to me that

the Taxing Master was in error in disallowing the

amounts of such disbursements to the extent to which he

did so. Accordingly in respect of item 75 I would con-

sider the appropriate disallowance in respect of this

item should be £4.20 and in respect of item 77 the

correct disallowance should be £2.10.

The remaining items relate to the disbursements of

fees for briefs for counsel and of fees for refreshers. In

reference to these the Taxing Master in his report says :

"In measuring these fees at the taxation I had special

regard to the nature of the case, the pleadings, the

directions of learned senior counsel in his advice on

proofs, the duration of the case, the size, extent and the

value of the damages awarded by the Court to the

plaintiff, the importance of the subject matter of the

action for the parties concerned and in particular for

the plaintiff. I took the view that it was a case where it

was reasonable for the solicitor to have briefed two

senior counsel and that the brief fee of £52.50 allowed

to each of them and the refresher fee of £21 allowed

to each of them was fair and reasonable.

"I noted that the cause of action arose on or about

7 July 1968, that the originating plenary summons was

issued on 3 April 1969 and that the action was disposed

of by the Honourable Court in November 1971.

"On the hearing of the objections it was argued on

behalf of the plaintiff that while the trial of the action

was confined to the issue of damages only that the

plaintiff's injuries were of a serious nature and that

apart from the other witnesses hereinbefore mentioned

counsel had to concern themselves with the evidence of

two surgeons, an eye specialist and a dentist who dealt

with the different aspects of the injuries from which the

plaintiff was alleged to have been suffering. I noted,

however, that the dentist did not attend Court as a

witness. On reconsidering the entire circumstances of

the case I felt that the fee on brief to each of the senior

counsel should be increased to 60 guineas with an

appropriate fee for junior counsel and I so ruled. I took

the view that the refreshers should also be increased and

having regard to what was urged in this regard and

taking all the circumstances of the case into considera-

tion that the refreshers to each of the two senior counsel

should be increased to 30 guineas and with an appro-

priate increase to junior counsel and I so ruled."

100