Lpgas Filling Services Limited
[2015] IELCA 3
THE HIGH COURT
2014 6472 P
CALOR TEORANTA
PLAINTIFF
AND
LPGAS FILLING SERVICES LIMITED
DEFENDANT
1. I have considered the files and papers herein. A notable feature of the contents of the Defendant’s Solicitors’ 17 correspondence files is the inclusion therein of multiple copies of emails and Pleadings relating not only to the instant case but also the related Action entitled “Calor Teo v LPG Cylinder Filling Ltd. t/a Munster Bottled Gas Distribution 2014 No. 6471P”.
2. Mr. O’Connor on behalf of the Plaintiff has carefully described each stage of the matter from date of receipt of instructions to the hearing, on 18 and 19 September 2014, of the Plaintiff’s Application for interlocutory injunctive relief against the Defendant, the taking of Judgment on 22 September and the subsequent hearing in regard to costs on 7 October 2014. In addition he has acknowledged that the Solicitors’ work in the instant case involved some overlapping of work with the other Action.
3. Particulars of the Plaintiff’s Solicitors’ professional time expended have been produced. It is apparent that the recorded time relates to both sets of proceedings.
4. It is unnecessary for the purpose of this ruling to set out the background to the matter as it is well set out in the bill of costs.
5. The proceedings were initiated by the Plaintiff by Plenary Summons dated 24 July 2014. The Defendant’s Solicitors were in receipt of instructions since 21 July and the period relevant to this taxation ended on 7 October 2014. The most intensive period of work for the Defendant’s Solicitors ran from 24 July to 19 September 2014. The instructions fee is charged at the sum of €215,000.
6. Counsel’s brief fees are marked at €15,000 for Senior Counsel and €10,000 for Junior with refresher fees of €3750 and €2500 respectively. The refresher fees have been reduced to €3250 and €2100 by agreement between the parties. Separate fees are marked for written submissions and these are in dispute (items 308 to 311). Finally, I have to consider and rule on the fees of IP Forensics Ltd. (€763.88) at item 332 of the bill.
7. Mr. McEvoy, for the Plaintiff has also carefully analysed the work undertaken herein; the overlapping issue, the time recorded by the Defendant’s Solicitors and in addition has introduced the time taken by the Plaintiff’s Solicitors in relation to both sets of proceedings and which includes time expended in relation to an issue which arose subsequent to the initial Order of the Court arising out of a press release on behalf of the Plaintiff. He argues costs of this latter aspect are not of relevance to consideration of the Defendant’s Solicitors’ time.
8. Mr. McEvoy advises that the total of the Solicitors’ professional fees incurred by the Plaintiff amounted to €116,600. The Plaintiff’s Senior Counsel marked €12,500 on the brief – covering both Actions.
9. Mr. McEvoy cited two comparators, to which I will refer later.
The instructions fee
10. At the opening of the injunction application on 18 September 2014, Senior Counsel for the Plaintiff advised the Court that the case he was “going to concentrate on, for no particular reason” was the instant case. This was on the basis that both cases were very similar, subject to minor factual differences but Counsel did not think anything turned on such differences.
11. The Order of 7 October 2014 awards the Defendant its costs of the injunction application together with reserved costs. The parties are in agreement that no Order for Costs was made in the second Action save for recovery of outlays.
12. Having considered the files it is clear that the work of taking instructions, drafting the replying Affidavits, consideration of Statements of Witnesses in reference to the Flogas v Trugas proceedings and the work of preparation for and attendances at Court, was common to both Actions. I see no reality to the contention on behalf of the Defendant that the greater proportion of the Solicitors’ work was concerned with the instant case. Quite clearly both applications ran concurrently, and as stated, albeit by the Plaintiff’s Senior Counsel, either case could have been opened to the Court. The principal Affidavits in both cases were almost identical in content, save for obvious factual and background differences.
13. In addition, it is clear that the work taken into account in assessing the instructions fee includes work relating to the defence of both Actions, such as the consideration of the Statements of Claim. Ms. Henry Solicitor, the partner in charge, had also been instructed in the Flogas v Trugas injunction application and again the files clearly show that Affidavits in that case were obtained and used to assist in the drafting of the replying Affidavits. This is evident from an email from the Defendant’s Junior Counsel dated 27 July 2014. Similarly the Statements of Mr. Martin and Mr. O’Connell in Flogas v Trugas were of assistance.
14. This is not to suggest that this case was not demanding both in terms of professional time input and expertise. It clearly was and there was pressure on the Defendant’s Solicitors at all stages to prepare Affidavits and brief Counsel within the time constraints to which I have already alluded.
15. It is not possible, nor is it necessary in my view, to reconcile the difference in total time input by the Defendant’s Solicitors (813 hours) with that of the Plaintiff’s Solicitors (325 hours). It seems that more personnel were applied to the various tasks by the Defendant’s Solicitors.
16. In my view, as between party and party, it would be reasonable to make allowance, given the urgency involved, for the costs associated with the involvement of a Senior Solicitor and a legal executive at the stage of the preparatory work. However I see no reason why, on a party and party basis, the cost of attendance at Court of more than one Senior Solicitor and a legal executive should be allowed. Possibly the fact that two sets of proceedings were being prosecuted contemporaneously is the explanation for the heavy involvement of qualified personnel on behalf of the Defendant. I can only take the costs attendant to one application into account.
17. Even taking this into account the difference in time input by the two eminent firms of Solicitors is stark.
18. That the time input includes work in relation to the separate “Mallow” Action and application is clear. Ms. Henry, Solicitor also travelled to Limerick to interview Witnesses on 26 July 2014 and was in correspondence in relation to that related case.
19. The Defendants in both Actions accepted that the use of the Plaintiff’s gas cylinders arose through error and on that basis this was not in the nature of a passing off injunction application of the sort which arose in the two comparators, to which I will refer presently. Accordingly, the issue to be determined was whether the Defendants in both Actions should be required to provide any of the undertakings being demanded by the Plaintiffs. The application was essentially opposed on these narrow grounds but there was indeed a mass of factual information to digest. In my view the appropriate instructions fee, as between party and party amounts to €62,000 broken down as to:
1.Taking of initial instructions and responding
urgently to the necessity of drafting of replying
Affidavits including all work attendant to
ascertaining the factual background and
historical circumstances (also involving perusal of
Affidavits and Statements arising in other
proceedings); instructions to and continuous
communication with Counsel; finalising and
filing Affidavits of: Richard Martin with 14
exhibits and Paul O’Connell with 3 exhibits,
Seamus Fox with 2 exhibits and Ken Walsh.
Including attendance at Court on 30 and
31 July 2014€10,000.00
2.All preparations for hearing of Plaintiff’s
Motion listed for hearing on 18 September
2014; considering replying Affidavits of Tom
O’Carroll, Eugene Ferris and Michael
Considine; taking instructions thereon;
preparation of replying Affdiavits of Paul
O’Connell, Richard Martin, Ken Walsh
and Seamus Fox; considering further
responding Affidavits from Sean McCourt,
Ciara Millar, Dr. R.S. Irani and Eugene
Ferris; preparation of final replying Affidavits
of Richard Martin (2) and Paul O’Connell;
preparation of substantial brief for Senior
and Junior Counsel; considering written
submissions; all inter partes correspondence
and attendance at trial of issue on 18 and
19 September 2014€50,000.00
3.Attendance at Court to take reserved
Judgement refusing Plaintiff’s application
for interlocutory relief; briefing counsel for
Costs hearing and attending thereat on
7 October 2014 €2,000.00
______€62,000.00
20. In my view there was no reasonable basis to the Defendant herein seeking recovery of the sum of €215,000 by way of instructions fee given that its Solicitors were also instructed by a separate legal entity namely LPG Cylinder Filling Ltd. t/a Munster Bottled Gas Distribution, to represent it, in an identical application for injunctive relief pursued by the same Plaintiff. The Defendant’s Solicitor’s invoice of 30 September 2014 is addressed to both sets of Defendants. It seems to me that half of the professional fee of €215,000 charged therein could only properly be included in the party and party bill of costs given that the Plaintiff has no liability to provide a party and party indemnity to LPG Cylinder Ltd. While the Court awarded ‘full costs’ to the instant Defendant (see Transcript 7 October 2014 p. 33), this is no more than an indemnity for party and party costs. It is clear from my examination of the files and papers that the Defendant’s Solicitors and Counsel were fully prepared for the defence of both applications. For instance a separate brief comprising three lever arch files was prepared for Counsel in each case and I have already made reference to the fact that the voluminous correspondence files relate to both Actions and applications.
21. I have assessed the instructions fee herein on the basis of the nature and extent of the work apparent from the files and documents submitted to me and having regard to the submissions on behalf of the parties. It is not my function to apportion the time expended between the two entities. This should have been done by the Defendant herein.
22. Of course, as already observed, not all of the costs incurred in the case are recoverable in any event as between party and party. The number of personnel attending Court, in terms of recovery of the costs thereof, should in my view be confined to two for attendance at the substantive hearing and one thereafter.
23. Even allowing for the urgency involved it is difficult to see why, as between party and party, any more than the cost of deployment of one Senior Solicitor and an assistant (whether Solicitor or legal executive) should be taken into account. The cost of back up staff engaged in photocopying for instance, is included in the Solicitors’ professional fees.
24. Accordingly my assessment of the professional fee may be viewed as roughly equivalent to an allowance of 206 hours at a blended rate of €300 per hour covering two personnel. Of course some work would attract higher rates (for Senior Solicitor and taking into account the urgency involved) but other work might warrant lesser rates.
25. Two comparators were also considered namely (1) Flogas Ireland Ltd. v Trugas Ltd. and (2) McCambridge Ltd. v Joseph Brennan Bakeries.
26. Of the two, it is clear that the Flogas case is the more suitable comparator by way of guide. The McCambridge application was of a different character and more complex and work intensive (with 17 Witness statements) and a four day hearing.
27. The Flogas instruction fee was assessed by me at €30,000. The McCambridge fee was agreed between the parties at €95,000.
28. In my view the instructions fee now measured at €62,000 acknowledges the urgency of the work herein and its importance.
The Brief Fees
29. Having carefully considered the brief and bearing in mind the allowance of the brief in Flogas at €10,000 and €30,000 in McCambridge, the fee as marked at €15,000 is reasonable, as is Junior Counsel’s brief fee at €10,000. I note that both of the fee notes issued by Counsel are in fact addressed to LPG Cylinder Filling Ltd. t/a Munster Bottled Gas and not the Defendant Company named in the title hereof. Given that these fees cover representation of two distinct Defendants I would allow Senior Counsel’s brief fee as between party and party, for the reasons already alluded to in relation to the instructions fee, at the sum of €7500 and Junior Counsel’s fee at €5000.
30. However, I must also consider the remaining items which relate to Senior and Junior Counsel’s fees for drafting written legal submissions. While the Court did not direct that submissions be provided in this case, Mr. McEvoy has accepted that I should take the work into account when assessing the brief fees. While submissions were specific to the instant case I believe the Plaintiff is entitled to an apportionment thereof also. I will accordingly allow the brief fee for Senior Counsel at €9000 and Junior Counsel’s brief fee at €6000. It follows that items 308 to 311 are disallowed.
Item 332 (IP Forensics Ltd.)
31. The report of the above firm dealing with the purchase by one of its agents of gas from one of the Plaintiff’s companies but utilising a cylinder with the name ‘Flogas’ printed thereon was exhibited in Affidavits which were separately filed in both sets of proceedings. However the full account submitted by IP Forensics in the sum of €763.88 has been claimed as an outlay in the instant case. In my opinion there was no necessity to employ a private investigator to make this purchase. An employee of the Defendant could have done so. I disallow the item.
Dated the 12th day of June 2015
Declan O’Neill
Taxing Master.