125 / 300
T h e report is so expressed as to convey to my mind
that the Taxing Master considered that he was deciding
what fees should be paid to counsel and that he was
measuring such fees in relation to the matters to which
he says he had regard. If this be so he erred in principle
in the exercise of the discretion vested in him. Nothing
in the report gives any indication that the Taxing Mas-
ter had in mind the problems of a reasonable solicitor
in practice at the time in determining what would be
a reasonable fee to offer to counsel either on the brief or
as a refresher. Indeed the allowances in respect of brief
fees and those in respect of refreshers do not appear to
bear any relation to each other, and it is difficult to
discover what significance, if any, was given to the
various matters to which the Taxing Master says he had
regard. I cannot accept that any reasonable practising
solicitor would expect that a fee of 20 guineas would be
acceptable as a refresher fee to a senior counsel compe-
tent to deal with the technical and other evidence in a
case of this importance and magnitude. I cannot accept
that a reasonable practising solicitor would expect that
his disbursement of a refresher fee to junior counsel in
a case of this magnitude would be equivalent to the
allowance he would expect to receive for copying the
brief, or indeed to the allowance for his own attendance
in Court. Th e re appears to be no common rational basis
for the variation of the allowances for refresher fees
(in the case of senior counsel from 20 guineas to 30
guineas) and the variation of the allowances in respect
of brief fees (in the case of senior counsel from 55
guineas to 60 guineas) such as might be expected if
regard was had in respect of each to the same relevant
factors. In my view the claim by the solicitor for allow-
ance of disbursements for refresher fees to counsel in
this case having regard to all the matters to which the
Ta x i ng Master refers in his report was reasonable to
the degree of being cautious.
I
understand
from
the
evidence
of
Mr.
White that the Taxing Master disregarded
the
submissions
in
relation
to
the
depreciation
in
the value of money. T h e standard apparently adopted,
of allowances for disbursement of brief fees in this case
appears to correspond in a general way with the allow-
ances which might have been made by the Tax i ng Mas-
ters in similar types of cases of slightly smaller awards
some six to ten years earlier. It may well be as Mr.
Mackey suggests that the Taxing Master has not kept
himself informed as to the standards of the reasonable
solicitor in practice today. T h e portion of the Taxing
Master's report which I have quoted indicates a possible
misconception by the Taxing Master of the nature of the
function he was performing insofar as it appears to
indicate that he considered he was measuring the
amount of counsel's fees. His report does not indicate
that he exercised his discretion in relation to these dis-
bursements of fees on a consideration from the solicitors
point of view of what would be a reasonable fee to offer
to counsel with the brief in this particular case, which
he had no reason to believe would stop short of
3
verdict of the jury.
In general the claims for allowances in this bill of
costs are all such as one would expect of a reasonably
cautious and prudent solicitor, and in this respect I take
into account other items in relation to which objections
were not taken to the disallowances. If, as it appears to
me, the solicitor is in general reasonable in his claims
on this bill of costs, and if the principle that "a success-
ful party should, so far as is reasonable, be idemnified
from the expense he is put to in an action" is to be
applied there can be no justification for such drastic
disallowances of disbursements for fees on briefs for
counsel. Had the Taxing Master considered these dis-
bursements on the basis of the principles I have earlier
indicated it may well be that he might have ma de som
e
partial disallowances. This, however, might savour of
caprice or arbitrary disallowance unless good reason
could be shown for relatively slight reductions. T o m
e
all the indications are that the solicitor in this case no*
only "acted in good faith and with ordinary intelli-
gence" but also was reasonably prudent in his disburse-
ments. Consequently, as there is no basis for any sub-
stantial disallowances, his measure of remuneration
ought not be interfered with. In the circumstances 1
would rule that the disallowances at items 67, 70, 73,
83 and 89 be disregarded.
Finally I feel compelled to comment that the Taxing
Master and the Costs Drawer who drew this bill of costs
seem to be unaware of the remarks of Kenny J. at the
conclusion of his judgment in
Lavan v. Walshe
(Num-
ber 2), 1967, I.R. 129, in relation to the contents of bill*
of costs, and I wish to draw their attention to this
aspect.
[Dunne v. O'Neill; Ga nnon J.; unreported; 5 April
1974.]
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