THE HIGH COURT
JUDICIAL REVIEW
2010 NO. 227 JR
[2012] IELCA 2
BETWEEN
ASHLYNN HEMPENSTALL
APPLICANT
AND
DUBLINCITY COUNCIL, IRELAND, THE ATTORNEY GENERAL
RESPONDENTS
AND
THE HUMANS RIGHTS COMMISSION
NOTICE PARTY
RULING IN RELATION TO INSTRUCTIONS FEE AND FEES OF COUNSEL.
The Applicant’s costs herein arise out of the hearing of an application, by way of Judicial Review seeking declaratory reliefs that Section 62 of the Housing Act 1966 is incompatible with Articles 6, 8, 13 and 14 of the European Convention on Human Rights and with the provisions of the Constitution under Articles 41.1, 40.3 and 43 thereof. In addition Orders of Certiorari setting aside a District Court Summons together with an Order of Prohibition restraining the first named Respondent from seeking to enforce the summons which had been issued pursuant to Section 62 of the Housing Act 1966 were also sought together with the other reliefs as set forth in the notice of motion. The costs which were awarded to the Applicant are limited in scope and nature by virtue of the Order of the High Court made on 19 October 2010 as follows:
“IT IS ORDERED THAT the Respondents do pay to the Applicant herein costs in these proceedings in relation to the Ex Parte Application made on the first day of March 2010 when taxed and ascertained.“
The Applicant’s bill of costs was listed for taxation before me on 18 May 2012, Mr. T. Quann representing the Applicant, instructed by Chris Ryan Solicitors and Mr. Stephen McDaid Legal Costs Accountant representing the first named Respondent which body it appears is indemnifying all Respondents in regard to costs.
Having heard the submissions on behalf of the parties I reserved ruling in relation to the instructions fee and the fees of counsel.
At the commencement of the taxation Mr. Quann intimated that the Applicant’s solicitor had prepared an estimate of the time applicable to the case, confined to the ex parte application.
Mr. McDaid confirmed that he had considered the Applicant’s solicitor’s file and papers and advised me that there were few attendance notes thereon.
Given the limited Order for costs which had been made in favour of the Applicant taken together with the instructions fee which is claimed at €22,500, I requested Mr. Quann to open the file and take me through, on a step by step basis, the work which had been undertaken herein.
Mr. Quann explained that it was necessary initially for the Applicant’s solicitor to ascertain the facts underlying the matter and in particular the issue of the District Court Summons by the first named Defendant seeking possession of the property at 7 Pimlico Terrace, Meath Street, Dublin 8 which the Applicant had been occupying by way of successor in tenancy therein to her late grandmother. The following is the sequence of work as outlined by Mr. Quann.
18 February 2010:
Attendance by the solicitor on an individual named ‘Kevin’, apparently an employee of Threshold who indicated that he was calling on behalf of a young lady who was at risk of losing her Local Authority dwelling. It emerged that a District Court summons was due for hearing on the following Monday 22 February; the young lady was then in hospital and it was agreed that her mother would contact the solicitor with instructions.
19 February 2010:
Attendance on Mrs. Hempenstall (per phone) who advised that her daughter was due to appear in Court; the solicitor requested the mother to attend at the office with all documents and she undertook to do so immediately; in the meantime the note records that the solicitor contacted Brendan Hennessy, Barrister who agreed to place himself on standby to make an application to the District Court for an adjournment on behalf of the client.[1]
22 February 2010:
Letter to Brendan Hennessy BL thanking him for attending at the District Court that morning and enclosing two booklets “which contain all relevant documentation furnished to me by Mrs. Hempenstall”. The booklets had not been indexed in view of the urgency.
22 February 2010:
Attendance note recording that the solicitor had over the weekend “printed off the Scheme of Letting Priorities and General Rules and Principles in Administrative Procedures from various Councils, in particular DublinCity Council”.
The solicitor had apparently come to a preliminary view that irrespective of the issues with the Section 62 procedure, the client may have been entitled to retain her tenancy in any event. This attendance note is in fact an internal memo addressed to Brendan Hennessy BL and may possibly be related to the defence of the District Court Summons.
23 February 2010:
Brief note recording consultation with counsel, client and client’s mother for the purpose of taking instructions and states “we went through all correspondence that she furnished to us and got the entire background to the case. We agreed to touch base later in the week.”
Meeting lasted one hour.
23 February 2010:
Memo to “Magda” requesting her to make four copies of “the attached documents and have them indexed and forward them to Brendan Hennessy BL and Sunniva McDonagh SC” [the documentation has not been identified].
24 February 2010:
Letter to Senior Counsel enclosing book of correspondence and documents and stating “I understand Brendan will talk to you regarding the draft proceedings over the next day or so.”
24 February 2010:
Letter to Senior Counsel. This is a detailed letter which appears to relate to a separate question raised by the solicitor as to whether the decision issued by Dublin City Council on 1 May 2009 might be considered when seeking an Order or Declaration in respect of Section 62.
[It appears from my perusal of the statement of grounds of application that relief was sought at para. 10 of the statement of grounds of application in relation to this aspect.]
Mr. Quann advised me that there were no other letters or attendances on file of relevance to the matters at issue which are pertinent to the period in question.
26 February 2010:
Statement of grounds of application and verifying affidavits sworn.
26 February & 27 February 2010:
Mr. Quann confirms that no work was carried out on these dates.
1 March 2010:
Ex parte application made to the Court. Senior and Junior Counsel being briefed. No briefs available for perusal. A composite brief (in relation to the substantive Judicial Review application produced).
The Submissions of the parties.
Mr. Quann, having outlined the particulars of the work undertaken by the solicitor emphasised that the Applicant’s solicitor was engaged in preparing the statement and affidavit grounding the ex parte application and was also involved in collating the documentation for exhibition in the affidavit. He made reference to an extract from Cook on Costs page 371 under the title of “The painful plodder’s charter” the essence of which emphasises the dangers of over reliance on time as a guide to valuing a solicitor’s work.
An undated letter from Junior Counsel to the Applicant’s solicitor which sets out particulars of work undertaken by him in the matter was also discussed, in the context of the reference therein at Item No. 1 to “a number of consultations with the client in order to ascertain the facts of the case”. Mr. Quann was unable to provide any information as to when these consultations took place or what was discussed at them, with the exception of course of the consultation which is noted on the file as having taken place on 23 February 2010. Reference was made to the receipt of certain medical documentation and letters from the CoombeHospital which are exhibited at ‘Exhibit G’ to the affidavit.
It was stated that while the file did not contain any evidence in relation to it, time was spent by the solicitor in preparing the brief for Counsel. Further that the solicitor had attended Court on 1 March 2010 for the hearing of the ex parte application. The solicitor had, by way of “conservative estimate” calculated that he had spent between 30 and 40 hours in preparing for the application to the Court.
Further that other intangible factors should be taken into account as referred to in Treasury Solicitor v Dinsmore Register [1978] ALL ER 920 and as to specialised skill it was submitted that this is evident given that the solicitor had taken the correct decision in making the application to the Court.
I enquired of Mr. Quann as to exactly how I should apply these intangible factors if, as a starting point, I had not been made aware of the extent of the work involved in the case. It was accepted that no more information was available to be taken into consideration by me.
By way of reply, Mr. McDaid initially made it clear that he was objecting on behalf of the first named Respondent to the allowance of the cost of briefing two Counsel for the purpose of making the ex parte application. Further that this was not in any way a novel application, there being “a batch of similar cases” and that Junior Counsel did not in fact have to carry out research specifically in relation to this case. Mr. McDaid enquired as to how it came about that Senior Counsel was retained in the matter.
In relation to the work of the Applicant’s solicitor Mr. McDaid stressed that the leave application was uncontested and that the grounding documentation had been drafted by Junior Counsel. He also pointed to the fact that no warning letter had been written by the Applicant’s solicitor prior to seeking leave, a factor which was ultimately criticised, he asserted, by the trial Judge.
It was asserted that this was not an exceptional case, the law was “well trodden” and in fact the affidavit grounding the application makes reference to relevant case law. Further, that there is an overlap of work between the two Counsel and the solicitor, all of whom had reviewed the same material. An overlap also occurred in relation to the District Court aspect which could not be allowed for in any event and any discussions which took place on 22 February 2010 were clearly in relation to this.
In relation to the time element Mr. McDaid confirmed that he had considered the Applicant’s solicitor’s file and could not understand the basis upon which the Applicant’s solicitor had estimated his time at 30-40 hours. He enquired as to what specialised skill was involved in this case pointing to the fact that the case law was available to Counsel for consideration and no element of the fee to be allowed could in any way relate to paying for research for either solicitor or Counsel.
It was emphasised that the number of consultations which Counsel had referred to had not been specified. The leave application itself had been just thirty minutes at hearing as confirmed by Junior Counsel in his letter. Much of the work referred to in Junior Counsel’s letter in fact arose post the leave application.
Mr. McDaid expressed surprise at some of the contents of Senior Counsel’s letter to the Applicant’s solicitor dated 24 February 2012 which referred to work undertaken in relation to the substantive hearing and not the ex parte application. It was suggested that there was no need for three lawyers to be involved in the moving of this application. The Court had awarded the costs of the ex parte application and only the work referable to that application could be taken into account.
In relation to the instructions fee Mr. McDaid stated that same would be fairly measured at the sum of €5,000 with allowance to one Counsel only in the sum of €2,500 in respect of the brief fee.
RULING.
I have set out already the nature and extent of the work as evidenced by the Applicant’s solicitor’s file and the explanations thereof which have been provided as to preparation for the hearing of the ex parte application to the Court.
A substantial instructions fee in the sum of €22,500 is claimed as being solely referable to the work undertaken in preparing for the application and moving same.
It has been suggested that the Applicant’s solicitor spent between 30 and 40 hours in taking instructions, carrying out research, preparing the documentation and exhibits and attending Court on the hearing of the application. Both Mr. McDaid and I found it impossible to accept that this time estimate was reasonable and the solicitor for the costs subsequently reduced the estimate to 18.5 hours per email of 13 June 2012 addressed to Mr. Quann.
The possible time parameters which might be involved are from 18 February 2010 to 1 March 2010. However I do not think that work of any substance took place on 18 February 2010. Arrangements were merely made for the Applicant’s mother to attend at the solicitor’s office. No papers were received or considered on this date.
In relation to 19 February 2010 it is clear that there was a telephone conversation with the Applicant’s mother on that date. No papers appear to have been received and certainly Mr. Quann was not in a position to confirm that any documents were received on that date. However Junior Counsel does refer at point no. 2 of his letter to receipt of papers on 19 February 2010 and perusing same over the weekend of 20 February 2010. I have no reason to doubt that Counsel carried out work as described by him but it seems clear that such work was undertaken in the context of the requirement that Counsel should attend at the District Court on 22 February for the purpose of representing the client and obtaining an adjournment. It seems evident from the file that the two booklets of documents which were received from the Applicant’s mother were sent to Counsel with a letter dated 22 February 2010.
On 27 June 2012 Mr. Quann provided me with an additional attendance note, which was not on the file, relating to a meeting which took place with the Applicant’s mother on 19 February 2010. It is evident therefrom that documentation was received on that date. There was a telephone conversation with Counsel and arrangements were made for Counsel’s attendance at the District Court on the following Monday.
The only reference to work having been carried out by the Applicant’s solicitor during this period is a note to Counsel dated 22 February 2010 in which the solicitor records that he had printed off the Scheme of Letting Priorities and General Rules and Principles in Administrative Procedures from various Councils and in particular Dublin City Council. Was this done in relation to the District Court aspect? It is clear that ultimately, in the context of the Judicial Review Application one of the reliefs sought was the quashing of the original decision of the Council of 1 May 2009. On this basis a reasonable amount of time should be taken into account to facilitate consideration of the Scheme relating to Dublin City Council.
It is clear that there was a one hour consultation with Counsel, client and her mother on 23 February 2010 following which it appears that indexed documentation was furnished to both Senior and Junior counsel. There is no letter to Junior Counsel in this regard but there are two letters to Senior Counsel of the same date namely 24 February 2010, in the first of which the documentation is forwarded with a notation that “Brendan [Junior Counsel] will talk to you regarding the draft proceedings over the next day or so”, and the second letter sets out in some detail the solicitor’s views concerning the decision of the Council dated 1 May 2009 and the possibility of seeking relief in that regard (which could well have been out of time). I think it reasonable to take into account the time spent in considering this issue and preparing instructions to Counsel (whether Senior or Junior).
The documentation was copied by a member of the solicitor’s staff. The statement of grounds of application and the affidavit in relation thereto were clearly drafted by Junior Counsel and the Applicant’s solicitor’s involvement therein does not appear to have been significant and certainly no case to the contrary was made to me.
I have been requested, for the purpose of considering the nature and extent of the work carried out to take into account not only the actual work including the time element but also the fact that the Applicant’s solicitor would have been considering the matter on an ongoing basis. The decision in Treasury Solicitor v Dinsmore Register was cited as authority in this regard.
On the basis of the work which was described to me and the documentation presented at the taxation I do not believe that there is any basis for asserting that the decision in Treasury Solicitor v Dinsmore Register has any relevance or possible application to the facts in this case or the work carried out by the solicitor. The bill of costs in that matter arose out of a conveyancing transaction and the costs were payable on a solicitor and client basis.
It is clear that Junior Counsel was not furnished with detailed instructions by the solicitor but rather was presented with the documentation which had been furnished to the solicitor by the Applicant’s mother. This documentation was gone through during the course of a one hour consultation with Counsel, the Applicant and her mother. Thereafter Counsel drafted the paperwork for the purpose of advancing the application to the Court. Once the statement of grounds and affidavit of verification were finalised there was nothing further that the Applicant’s solicitor could do in the matter nor has any evidence been placed before me suggesting that any further work was carried out by him other than his physical attendance at Court for the purpose of attending Counsel on the hearing of the application on 1 March 2010.