THE HIGH COURT
[2013] IELCA 5
2011 NO. 4049 P
BETWEEN
CAROLINE JORDAN
PLAINTIFF
AND
DECLAN BUCKLEY, TREVOR O’CALLAGHAN THE MIDLAND REGIONAL HOSPITAL MULLINGAR ANDHSEDUBLIN MID LEINSTER REGION
DEFENDANTS
RULING NO. 2 FOLLOWING HEARING OF PLAINTIFF’S OBJECTIONS
The Plaintiff’s bill of costs herein was listed for taxation before me on 19 December 2012 pursuant to Order of 4 October 2012, when, as explained in my ruling no. 1 dated 8 February 2013, the matter was discussed and adjourned to 15 January 2013. On that date the taxation was concluded subject to ruling in relation to the instructions fee and concerning an issue which had arisen as to whether the brief fees claimed in the bill of costs had been prematurely incurred.
I duly dealt with both aspects in my said ruling and the Plaintiff being dissatisfied with my decision to disallow, as between party and party, the costs attendant to issuing briefs to Counsel for the trial of the action and instead to allow only the costs of briefing Senior Counsel for the purpose of conducting settlement negotiations, carried in objections dated 22 February 2013. In addition objection was raised concerning my disallowance of the fees of Segrave Daly & Lynch Ltd. Consultant Actuaries.
The Brief Fees
The matter at issue is not quite correctly identified in the Plaintiff’s written submissions which were filed on 22 February 2013, as follows:
“Whether the Taxing Master was correct in determining that the briefs to Senior and Junior Counsel in respect of the above matter were prematurely delivered and whether, following on from that finding, the Taxing Master was correct in assessing a brief fee in respect of one Counsel only.”
In fact, I did not allow a brief fee in respect of one Counsel. I allowed a negotiation fee in the sum of €7500.
In essence it is asserted on behalf of the Plaintiff that I was in error in my application of the provisions of Order 99 Rule 37(25) RSC 1986 and in the application of the principles enunciated in McGrory v Express Newspapers plc & Anor.[1] Further and in accordance with the decision of Cordner v Guedalla 29 LR Ir 81, while the brief may be held to have been prematurely issued if a case is settled before Notice of Trial, such finding is largely dependent upon circumstances and reliance is placed on the following extract from a publication entitled “Taxation of Costs”[2]
“Prematurity is not conclusively dependent upon the procedural steps within a case but rather with the reasonable and proper conduct of a case.”
It is asserted that the Taxing Master was incorrect in “surmising that there were material matters outstanding”. In this regard the situation as found by the Court in McGrory is distinguished from the situation herein. Further that a principle arrived at in McGrory was that it was necessary that there be no ulterior motive on the part of the Plaintiff’s solicitor in issuing the briefs to Counsel at the relevant time. It is asserted that there was no excessive caution on the part of the Plaintiff’s solicitor and that in issuing the briefs to Counsel the said solicitor was “simply taking the final step in advancing the case to hearing in circumstances where all the work had, in reality, been done.”
It is further asserted that the principles to be applied in the taxation of costs as between party and party are the same as those applied in the McGrory decision irrespective of the fact that McGrory was taxed on the solicitor and client basis.
It is asserted that a number of conclusions drawn by me at p. 8 of my ruling are factually incorrect. That Senior Counsel in the Advice on Proofs did not, at any point, refer to the case as not being ready for trial, that there was an incorrect implication that a number of directions had not been attended to and specifically that a pre trial consultation with the client “would be a matter ordinarily advised and would not be a matter that credibly supports a finding that the matter was not ready to proceed to hearing”. In reference to the directed teleconference with the medical experts, whilst acknowledging such was a matter to be undertaken prior to trial, it was stated was “not something that would affect the readiness of the hearing.”
Senior Counsel’s direction in the Advice on Proofs that a Senior and Junior Counsel should be briefed was described as generic. That as a matter of fact the briefs were delivered to Counsel on 1 June 2012 and accordingly “insofar as the decision to disallow the briefs is based on an assumption that the briefs had not been delivered, same is fundamentally flawed.”
My finding that the Defendants’ solicitors were pressing for settlement negotiations prior to the date upon which the action was set down for trial is, in essence, submitted to be immaterial, such that “it is of course the fact that the Plaintiff is entitled to prosecute her claim and in fact obliged to do so expeditiously. The listing of the matter for hearing and delivery of briefs for hearing at a time when all matters, with the exception of a client consultation and a short teleconference, had been attended to was entirely consistent with the proper prosecution of the claim. As Murphy J. commented in McGrory “procrastination is a more serious misconduction of a case than impetuosity can ever be.” It is submitted that the judicial dicta is one which the Taxing Master must take into consideration.
It is asserted that Junior Counsel’s email of 2 March 2012, if anything, reflects the fact that the Plaintiff was “prosecuting her claim with appropriate speed whilst remaining alive to the possibility and prospect of settling the claim.”
Whilst noting that the defence was delivered on 28 May 2012 and at the same time the Defendants suggested various dates on which settlement negotiations could take place, it is asserted that “the Taxing Master fails to indicate any authority which would support the view that the Plaintiff is advised to immediately cease prosecution of her claim until such time as those settlement discussions have taken place.”
Further that given many cases do not in fact settle as a result of negotiations “it must be construed as being reasonable for the Plaintiff to continue to advance her claim and to prepare for the hearing of the Trial”.
Further reliance is placed on an extract from Flynn & Halpin:
“It appears that the Defendants have a very difficult hurdle to clear to demonstrate …that the briefs may have been delivered prematurely, if they have been delivered post the service (emphasis added) of the Notice of Trial.”[3]
The argument is that this quotation reaffirms the Plaintiff’s argument that it is the date of service of Notice of Trial and not the date of setting down for trial which provides the backdrop against which prematurity must be assessed. In essence, it is claimed that the Plaintiff had served her Notice of Trial before briefs were issued to Senior and Junior Counsel and that all work had been undertaken relevant to preparation of the case for trial save the holding of a teleconference with medical experts and a standard client consultation. On this basis it is claimed that the case was ready to be heard.
The Defendants’ replying submissions set out some of the relevant dates and the principles applicable to the taxation of costs as between party and party in addition to emphasising where the onus of proof lies in taxation of costs as between party and party, namely on the party claiming the costs. In this regard a distinction is drawn between costs taxed on the solicitor and own client basis and the taxation which took place herein. Further, that there is no requirement, in a party and party taxation, on a Defendant, for the purpose of demonstrating prematurity in delivery of a brief, for the advancement of cogent reasons that would undermine the intention of the solicitor, in effect to show that such solicitor was acting with excessive caution and unreasonably so. It is asserted that such a requirement would place a very onerous burden of proof on the paying party contrary to the Rules of Court and the provisions of The Courts and Court Officers Act, 1995.
It appears to me that the submissions advanced on behalf of the Plaintiff are based principally, on a misconception that both Senior and Junior Counsel were briefed for the trial of this action, at a date subsequent to the service of the Notice of Trial herein. This is not the case. In order to properly consider the parties’ submissions and in particular those on behalf of the Plaintiff it is necessary to set out a chronology of relevant dates. This chronology is somewhat more comprehensive than that set forth in the Plaintiff’s submissions.
8 March 2011Instructions to act received.
6 May 2011Personal Injury Summons issued.
5 May 2011Affidavit of Verification.
2 June 2011Notice of Discontinuance against the first and
second named Defendants.
3 June 2011Appearance by Hayes Solicitors for third and
ourth named Defendants.
21 Oct. 2011Defendants’ Notice for Particulars received.
21 Oct. 2011Defendants seek Voluntary Discovery of medical
records.
10 Nov. 2011Plaintiff’s Motion for Judgement in default of
defence.
23 Nov. 2011Plaintiff’s replies to Defendants’ Notice for
Particulars.
23 Nov. 2011Schedule of Special Damages.
1 Dec. 2011Receipt of report of Mr. Beckingham, Consultant
General & Laparoscopic Surgeon.
23 Jan. 2012Updated Particulars of Personal Injury.
23 Jan. 2012Updated Particulars of Negligence.
23 Jan. 2012Affidavit of Verification.
23 Jan. 2012Order – Extending time for defence – 5 weeks.
25 Jan. 2012Plaintiff’s Affidavit of Discovery re medical records.
16 Feb. 2012Receipt of letter of same date from Mr. Beckingham.
29 Feb. 2012Letter - Hayes Solicitors to Plaintiff’s solicitor –
noting defence outstanding – intimating intention
to meet to discuss settlement.
1 March 2012Email from Solicitor to Junior Counsel.
2 March 2012Internal email.
2 March 2012Email Junior Counsel to Solicitor.
6 March 2012Letter of reply to Hayes – open to settlement talks but not going to delay advancing case at the same time.
29 March 2012Further Motion for Judgement in default of defence.
30 March 2012Internal email.
11 April 2012Internal email.
13 April 2012Letter to Defendants’ solicitors – still in default – second Motion – anxious to set down for trial and call on for hearing – in the event of proceeding to settlement – will seek costs to defence stage.
17 April 2012Letter from Defendants’ solicitors – confirm draft defence in possession, subject to instructions – noting refusal to discuss settlement until defence is served.
18 April 2012Letter in reply confirming Plaintiff’s solicitors amenable to a meeting.
28 May 2012Defence of third and fourth named Defendants.
28 May 2012Defendants’ solicitors’ invitation to Plaintiff’s solicitors to attend settlement meeting (subject to vouching special damages) on either 31 May or 7 or 11 June 2012.
1 June 2012Letter to Senior and Junior Counsel seeking Advice on Proofs and enclosing brief.
1 June 2012Notice to Produce.
5 June 2012Letter from Defendants’ solicitors reiterating invitation to settlement talks on 7 or 11 June.
7 June 2012Plaintiff’s replying letter – unable to attend – awaiting final report from one medical expert – suggesting meeting possibly towards end June.
8 June 2012Notice of Trial issued and served.
Letter from Plaintiff’s solicitor to client – Defence received – proceeding to set down for trial – hope for settlement talks in July – if successful will not have to proceed with a Court hearing.
13 June 2012Letter from plaintiff’s solicitor to Defendants advising of list number and intention to attend Court on 2 July to call the matter on for hearing.
13 June 2012Plaintiff’s solicitor’s attendance note on Defendants’ solicitors – Defendants not agreeable to calling case on – requests meeting first – “all costs ……?? being exercised” – setting down for hearing sharp practice – very angry – when revert re talks they will (Defendants) come back re application to get it set down.
13 June 2012Letter (no. 2) Defendants’ solicitors to Plaintiff referring to repeated requests for settlement negotiations since 29 February 2012 – setting forth relevant dates – requesting Plaintiff’s solicitor to honour commitment to meet for settlement negotiations “after we served our defence and hold off calling the case on for hearing until after the negotiations” – intention to bring the matter to the attention of the Court and the Taxing Master in relation to costs.
13 June 2012Letter (no. 1) Defendants’ solicitors to Plaintiff’s referring to obligations under Section 17 Civil Liability & Courts Acts, 2004.
18 June 2012Plaintiff’s solicitor’s reply - awaiting medical report – anticipate being in position to meet in July - denying any intention to accumulate costs – earliest date probably February 2013 – instructions in strongest possible terms from client to advance the case without delay – quite entitled to seek a hearing date – solicitor will be in Law Library 16 July and suggesting that date for settlement – identifying Senior and Junior Counsel representing the Plaintiff.
18 June 2012Letter from Senior Counsel enclosing Proofs – papers voluminous and retained for the present.
18 June 2012Advice on Proofs.
18 June 2012Order re Defence.
19 June 2012Letter from Junior Counsel in relation to loss of earnings and previous Advices - Counsel’s view that Plaintiff has potential claim for such losses – direction to prepare figures and urgently quantify loss and instruct Actuary – urgent letter directed to Mr. Beckingham – Section 17 offer directed – necessity of pleading potential loss of earnings claim – importance of meeting client emphasised – confirming Counsel to apply for hearing date on 2 July 2012.
20 June 2012Notice of offer and Terms of Settlement (€250,000).
28 June 2012Defendants’ Notice for further and better Particulars arising on Plaintiff’s schedule of 23 November 2011.
3 July 2012Hearing date specially fixed for 12 March 2013.
17 July 2012Replies to Defendants’ Notice for Particulars.
18 July 2012Plaintiff’s schedule of Special Damages.
18 July 2012Plaintiff’s Notice of offer of Terms of Settlement €250,000 plus Specials.
23 July 2012Settlement negotiated at €98,000 inclusive of Special Damages plus costs including reserved costs.
At p. 5 of my first ruling herein I proffered the view that the bill of costs had inaccurately recorded the sequence of events relating to the briefing of Counsel herein. The bill suggests that the briefs were issued to Counsel at some time subsequent to 20 July 2012. There is then a charge at item 187 for attendance at a “pre hearing” consultation and in respect of which Counsel had marked fees of €500 and €350 at items 188 and 189 respectively. These charges were disallowed and are not the subject of objections.
It appears to me that the Plaintiff’s solicitor’s file clearly shows that both Senior and Junior Counsel were provided with briefs on 1 June 2012 (although this was for the purpose of obtaining an Advice on Proofs). The Plaintiff’s submissions are based on the premise that the briefs were issued on 1 June 2012.
At para. 27 of the Plaintiff’s submissions it is emphasised that it is the date of service of the Notice of Trial which is important, with the assertion that the Plaintiff had served the Notice of Trial, by inference, before the briefs had issued. This is clearly not the case.
It is clear that within two days of receipt of the Defence the Plaintiff’s solicitor had, on 1 June 2012, requested the Advice on Proofs and at the same time briefed both Senior and Junior Counsel for the hearing of the action. The action itself was not set down for trial until 8 June 2012 and a Notice for Trial was served by registered post on the same date. The Advice on Proofs was not in fact received until 10 days later and contrary to the Plaintiff’s assertions it is quite clear therefrom that matters of importance remained to be attended to. The chronology referred to above shows quite clearly that the loss of earnings aspect had not been properly quantified and on the liability side there remained questions to be answered by the medical expert Mr. Beckingham. The Advice on Proofs was stated to be preliminary in nature.
I am firmly of the opinion that the Plaintiff’s solicitor prematurely briefed Counsel for the trial of this action. In my view no inference can reasonably be taken that the Defendants’ denial of liability to provide indemnity for the brief fees or my acceptance of such implies any suggestion that the Plaintiff’s solicitor should not have proceeded, with all reasonable haste, with the prosecution of the Plaintiff’s action. There was nothing to stop the Plaintiff’s solicitor from setting down the action for trial, seeking the Advice on Proofs, complying therewith and then issuing briefs. This is the normal course of events. Even allowing for receipt of instructions from the client to proceed with all possible haste it would have been perfectly feasible to have served Notice of Trial, prepared for a settlement meeting (including furnishing of appropriate papers to Senior Counsel) and attend at such meeting. Thereafter, if necessary, full briefs could have been submitted to Senior and Junior Counsel for the trial of the action. This is the course which, in my experience, a defence solicitor would expect a Plaintiff’s solicitor to reasonably adopt in the circumstances prevailing. This would not constitute a delay or procrastination in the prosecution of the Plaintiff’s action but rather, it is quite apparent that attendance at a settlement meeting such as occurred in the instant case is part and parcel of the prosecution of a Plaintiff’s case.
Each case must be considered on its own merits. In my view there is a considerable difference between the objective analysis which a Taxing Master must bring to bear on an adjudication as between party and party and that which applies as between solicitor and own client. It is noteworthy for instance that the Court in the McGrory case referred to the Plaintiff’s uncertain state of health and from a subjective viewpoint this is perfectly appropriate as between solicitor and own client. Indeed, in certain circumstances this may be the case even on the party and party basis but such a factor did not arise in the instant case.
I do not think it is necessary to find, nor does McGrory decide that a finding of the existence of an ulterior motive on the part of the solicitor is necessary in order to justify the disallowance of briefing costs. This may indeed be a consideration whether from the solicitor and own client or party and party perspective but it is a factor to be considered and weighed in conjunction with other relevant factors. In my view Order 99 Rule 37(25) RSC referred to at p. 6 of ruling no. 1 mandates that all relevant factors must be considered by the Taxing Master before arriving at an opinion.
On the Plaintiff’s own admission the briefs had issued to Counsel prior to the action being set down for trial or service of Notice of Trial.
At the time of issue of the briefs on 1 June 2012 there was already a standing invitation from the Defendants’ solicitors to attend at settlement negotiations. By letter of 13 April the Plaintiff’s solicitors seem to indicate that only costs to the defence stage will be claimed in the event of settlement at early stage. By letter of 7 June the Plaintiff’s solicitors suggested a settlement meeting towards the end of June but the next day set the action down for trial, having briefed Counsel a week earlier.