Kate Murphy (A Minor) Suing by Her Mother and Next Friend Sarah Murphy

Kate Murphy (A Minor) Suing by Her Mother and Next Friend Sarah Murphy

[2016] IELCA 5

THE HIGH COURT

2007 9496 P

BETWEEN

KATE MURPHY (A MINOR) SUING BY HER MOTHER AND NEXT FRIEND SARAH MURPHY

PLAINTIFF

AND

HEALTH SERVICE EXECUTIVE AND RAYMOND HOWARD

DEFENDANTS

Ruling following hearing of Plaintiff’s Objections arising on Taxing Master’s verbal ruling delivered 9 October 2014.

1. The Plaintiff’s bill of costs herein was taxed pursuant to Order of the Court dated the 20th day of June 2013. The taxation was commenced on 24 July 2014 and was adjourned for hearing of submissions to 3 September 2014 following which I reserved my ruling in relation to the Solicitor’s instructions fee and the brief and refresher fees of Counsel. I delivered my ruling on 9 October 2014 and accordingly the costs were taxed on that date.

2. The Plaintiff’s Objections were filed on 23 October 2014 and were followed by written submissions dated 5 Jan 2015. The Defendants’ replying submissions were filed on 18 February 2015. The Objections hearing took place on 5 October 2015.

3. The Plaintiff’s Action was commenced by Personal Injury Summons issued in 2007 claiming damages against the Defendants on foot of the negligence and breach of duty alleged against each of them relating to the management of the minor Plaintiff’s birth on 20 September 2005 and arising out of which the Plaintiff had been diagnosed as suffering from cerebral palsy which condition was permanent and irreversible with resultant requirement for ongoing treatment and assistance for her lifetime.

4. The costs taxed by me arose out of the third award by the Court of costs to the Plaintiff herein. The first such award of costs arose out of the interim settlement of the Plaintiff’s Action on 1 March 2011. The terms of settlement provided as follows:

“

  1. It is the intention of the parties that certain of the Plaintiff’s claims shall be dealt with in 2 years time on the basis of a periodical payment order, if such a mechanism has, by that date, been provided for by legislation applicable to such claims. However, the Plaintiff and the Defendants reserve their entitlement to request that the Court deal with the remaining claims by way of lump sum payment. For this reason the parties agree that the proceedings shall be adjourned for a 2 year period (“the Adjourned Date”):
  1. The parties agree to pay the following sums in full and final settlement of the Plaintiff’s claims under the following headings:

a)General Damages: €450,000.00

b)Plaintiff’s claim for future loss of earnings: €400,000.00

c)Retrospective care costs of the Plaintiff to date: €125,000.00

The Defendants have agreed to apologise to the Plaintiff in open Court.

  1. The parties agree that the Defendants shall make the following payments in full and final settlement of the Plaintiff’s claims for the period between the date of this agreement and the Adjourned Date:

i Cost of Physiotherapy and Speech and Language

Therapy, Occupational Therapy and extra heating costs€7,500.00

ii Cost of aids and appliances and assistive technology €50,000.00

iii Cost of care €100,000.00

  1. The parties agree that the Defendants shall make an interim payment on account in the sum of €200,000.00 in respect of the Plaintiff’s future housing needs pending the reserved decision of O’Neill J. in the Barry case. When this decision is to hand, the Plaintiff shall be at liberty to re-enter these proceedings for the purpose of determining her full entitlement in respect of her future housing needs.
  1. The parties agree that the payment of the above figures to the Plaintiff’s next friend are entirely without prejudice to the rights of the Plaintiff and/or the Defendants in relation to the determination of the issue as to the Plaintiff’s requirements for future care, aids and appliances and assistive technology and/or physiotherapy and the above figures shall not constitute any acknowledgement that any aspect of these heads of claim advanced herein have been established and/or limited thereby.
  1. The parties agree that, on the Adjourned Date, and in default of agreement between the parties, the Court shall be asked to assess the remaining claims whether by way of periodical payment order or by lump sum payment.
  1. The Defendants shall pay the Plaintiff’s costs of the proceedings to date (to include any reserved costs and costs of and incidental to discovery) together with the costs of any application to have the Plaintiff taken into Wardship (agreed at a cost of €3,500.00 plus VAT) all such costs to be taxed in default of agreement. The Defendants agree to vacate the costs Order made against the Plaintiff on the 27 July 2009.
  1. Pending the final determination of this action, the Plaintiff and the Defendants shall each have liberty to apply to the Court in respect of any matter arising out of this agreement.”

5. Costs arising out of this aspect were taxed by Taxing Master Flynn on 22 November 2011 pursuant to Order of the Court dated 1 March 2011. I note in my ruling Sheehan (An Infant) v Corr delivered on 29 May 2014 on foot of that Plaintiff’s Objections that I made reference at pp. 45 and 46 to the outcome of the taxation of the instant Plaintiff’s costs. It is clear that both negligence and causation were very much in issue with the negligence aspect not only being focused on the obstetrical but also on the midwifery aspects. Liability was in issue until six days prior to the trial.

6. The Plaintiff’s Solicitor’s instructions fee was taxed at €400,000 but, as alluded to in my ruling there was no information as to how this sum was assessed. Senior Counsel’s brief fee taxed at €90,000.

7. A second Order of the Court which gave rise to further party and party costs payable to the Plaintiff herein, is dated 1 February 2012. That Order noted the settlement of the Plaintiff’s substantive Action already referred to and further noted that the additional settlement was entered into between the parties “in full and final settlement of the Plaintiff’s claim for future housing needs without admission of liability for the need for an additional bedroom for a carer” at the sum of €200,000 which brought the cumulative damages and accommodation needs to €1,532,500. An additional instructions fee and brief fees were agreed between the parties. I understand that a further instructions fee of €40,000 was paid to the Plaintiff’s Solicitors in relation to this aspect. Senior Counsel’s additional brief fee of €12,500 was agreed in full.

8. The third Order of the Court in respect of which the Plaintiff is entitled to costs is dated 20 June 2013, the taxation of which costs is the subject of the Plaintiff’s Objections herein. The terms of the settlement which were approved by the Court are dated 19 June 2013 and provide as follows:

“

  1. It is the intention of the parties that certain of the Plaintiff’s claims made in these proceedings in respect of her future requirements identified at paragraph 9 below, shall be dealt with in one years time on the basis of a periodical payment order (PPO), if such a mechanism has, by that date been provided by legislation applicable to such claims. However, in the event that by 19 June 2014 (the adjourned date) legislation conforming substantially with the recommendations of the working group on medical negligence and periodic payments (Module 1) contained in its report, dated 29 October 2010, shall not have come into effect, the Plaintiff shall be entitled at her discretion to apply to proceed with the trial of the said claim on the basis of the law as it now stands and the Plaintiff and the Defendants specifically reserve their entitlement to request that the Court deal with the remaining claims by way of lump sum payment or by way of further Order providing for an additional annual payment pending the aforesaid legislation.
  1. The Defendants shall make a payment in the sum of €70,000 in respect of care for the period between the date of this agreement and the adjourned date.
  1. The Defendants shall make a payment in the sum of €3120 in respect of speech and language therapy for the period between the date of this agreement and the adjourned date.
  1. The Defendants shall make a payment in the sum of €1500 in respect of psychological therapy for the period between the date of this agreement and the adjourned date.
  1. The Defendants shall make a payment in the sum of €22,000 in respect of aids and appliances for the period between the date of this agreement and the adjourned date. The said sum of €22,000 being a compromised figure, in respect of all claims for aids and appliances and the payment of this sum of €22,000 is not to be construed by either party as constituting a payment in respect of any particular item of aids and appliances.
  1. The Defendants shall make a payment in the sum of €5000 in respect of assistive technology for the period between the date of this agreement and the adjourned date. The said sum of €5000 being a compromised figure, in respect of all claims for assistive technology and the payment of this sum of €5000 is not to be construed by either party as constituting a payment in respect of any particular item of assistive technology.
  1. The Defendants shall make a payment in the sum of €3000 in respect of physiotherapy for the period between the date of this agreement and the adjourned date. The said sum represents a compromised figure.
  1. The parties agree that the payment of the above figures to the Plaintiff’s next friend through the Office of the Wards of Court on her behalf are entirely without prejudice to the rights of the Plaintiff and/or the Defendants in relation to the determination of the issues as to the Plaintiff’s future requirements for care, appliances, aids, speech and language therapy, psychological therapy and the above figure shall not constitute any acknowledgement that any aspect of these heads of claim advanced herein have been established and/or limited thereby.
  1. The parties agree that, on the adjourned date, and in default of agreement between the parties, the Court shall be asked to assess the following claims whether by way of periodical payment order or by lump sum payment, or by way of further Order providing for an additional annual payment , the aforesaid legislation:

a)physiotherapy, speech and language therapy and psychological therapy in respect of the period subsequent to the adjourned date;

b)aids and appliances in respect of the period subsequent to the adjourned date;

c)assistive technology in respect of the period subsequent to the adjourned date

d)future care costs in respect of the period subsequent to the adjourned date.

  1. Should any portion of the above sums remain unspent by the adjourned date the Defendant shall be entitled to a credit in respect of any such sum. With regard to the payment in respect of care between the date of this agreement and the adjourned date, the Defendants recognise that any over and above care provided to the Plaintiff by Sarah Murphy or on her behalf can be taken into account when calculating the said credits.
  1. The Plaintiff does not and will not make any claim of whatsoever nature for the period 01/3/13 to the date of this agreement.
  1. The Defendants shall pay the Plaintiff’s costs of these proceedings to date (to include any reserved costs, all such costs to be taxed in default of agreement).
  1. Pending the final determination of this action, the Plaintiff and the Defendants shall each have liberty to apply to the Court in respect of any matter arising out of this agreement.”

The Plaintiff’s Objections

Item 69:The Instructions Fee

9. The Plaintiff asserts that the measurement of the instructions fee by the Taxing Master at €34,500 fails to reflect a correct determination of the “nature of the case and extent of the work done by finding that the nature of the case is a limited assessment of damages”. It is asserted that time and labour had been assessed other than in accordance with law and that the application of time as a checking mechanism similar to a comparator is a failure to apply the guidance provided by the higher Courts as to how time and labour should be assessed. Further that the assessment of the instructions fee was inconsistent with previous rulings and that it was not possible to consider how the fee was arrived at notwithstanding the breakdown provided in the ruling.

Counsel’s Fees

Item 14: Brief fee for Senior Counsel claimed at €60,000 and allowed at €13,500.

10. The Plaintiff asserts that the disallowance is unfair and unreasonable and that no explanation had been provided in respect of same. Further that the Taxing Master had been overly influenced by his determination that the nature of the case was a limited assessment of damages.

Item 17

11. A similar objection arises in regard to Junior Counsel’s brief fee which was marked at €40,000 and allowed at €6750.

Items 60 & 62

12. Refresher Fees – Senior Counsel’s refresher fee claimed at €5000 and allowed at €3000 with Junior Counsel’s fee claimed at €3500 and allowed at €1500.

13. I have had the benefit of receiving the Plaintiff’s written submissions. I have also received a précis of evidence of Ms. Joice Carthy, the Solicitor who had carriage of the proceedings. At the commencement of the hearing the Defendants’ Counsel submitted that this document was of no benefit given the lack of information therein by way of outline of the evidence to be adduced by this Witness. I agreed with Counsel’s observation but in view of his agreement that the hearing should proceed I acceded to this. I have had the benefit of hearing the evidence of Ms. Carthy.

14. In her written submissions the Plaintiff takes issue with my finding that the assessment of damages in this case was either very limited or limited in nature. It is asserted that these findings have skewed the quantification of the appropriate instructions fee. Further, it is asserted that the assessment of damages in a Periodical Payment Order type case should not be compared to an ordinary assessment of damages. It is essentially asserted that since no rules, legislative or otherwise, are in place in relation to such an assessment this belies “the description of this case as a mere assessment and justifies an uplift in the instructions fee which is neither acknowledged or allowed in the taxation”. The Plaintiff’s cites some observations of Ms. Justice Irvine on 20 June 2013 during the course of the ruling of the settlement, in support of this assertion.

15. In particular it is asserted that the issue of whether or not the Plaintiff was precluded from claiming in respect of psychotherapy costs was a matter which, until the settlement, it was anticipated would be dealt with by the Court. This requirement was obviated given that the Defendants would not now make the case that the Plaintiff was precluded from claiming such costs going forward. It is asserted that the Court on ruling the settlement had likened the Defendants’ stance to it having asserted an estoppel against the Plaintiff.

16. The submission is made that this issue may have impacted on cases of this kind going forward and accordingly that it was inconceivable that a point of that magnitude could arise in a limited assessment and that all of this turned on a legal issue as to the manner in which a Court would interpret the original agreement.

17. The Plaintiff also asserts that a novel issue arose in concluding the settlement as to what was to occur, in terms of the Defendant receiving a credit in the event that any payment received was unspent as of the adjourned date. The counterweight provision is emphasised whereby the settlement provided that any care provided by the Plaintiff’s mother, over and above the care a mother would normally give, should be taken into account. This is described as a unique and novel feature. Further that this provision does not connote a discreet self contained assessment but rather the existence of complexities created by the fact that the Plaintiff’s advisors were obliged to safeguard the position, now and into the future, to ensure a future care claim was not in any way prejudiced.

18. On the basis of the provisions of Order 99 Rule 37 (22) (ii) (e) the Plaintiff’s submissions emphasise the factors to be taken into account. In particular the mandatory requirement on the Taxing Master to take into account the importance of the cause or matter to the Client referred to at clause (e) and the skill, specialised knowledge and responsibility required of and the time and labour expended by the Solicitor referred to at (b).

19. The time and labour expended in the case is emphasised and the Plaintiff asserts that I erred in my assessment having regard to the Judgement of the Court in Best v Wellcome (Barron J.) and in CD v Minister for Health & Children & Anor. (Herbert J.).

20. Emphasis is laid in the Plaintiff’s submissions, in particular, on the detailed time records which were compiled by the Plaintiff’s Solicitor with the assertion that no proper regard was had to them. Further that having assessed the instructions fee at €34,500 the Taxing Master “then purports to justify that fee by reference to an hourly rate of €275 for 125 hours”. It is asserted that the overlapping of work alleged by the Defendants’ costs accountants had not been addressed and that the ruling had failed to provide any reasoning “as to the arbitrary reduction of 212 hours to 125 hours”. Further it is asserted that the time records properly represent a starting point (Plaintiff’s emphasis) in conducting an assessment as required by Section 27 of the Courts and Court Officers Act, 1995 and that a global assessment was conducted without reference to the matters which should properly influence the exercise of a discretion. In this regard the Plaintiff asserts that the time records were thereafter retrospectively used to justify the assessment. The Plaintiff submits that I erred in the assessment of the applicable hourly rate and that the appropriate comparators had neither been accepted or rejected.

Top View