Doyle Hanlon & Company Solicitors

[2013] IELCA 6

DOYLE HANLON & COMPANY SOLICITORS

THE HIGH COURT

FAMILY LAW

2007 NO. 53 M

IN THE MATTER OF THE JUDICIAL SEPARATION AND FAMILY LAW REFORM ACT 1989

AND

IN THE MATTER OF THE FAMILY LAW ACT 1995

BETWEEN

APPLICANT

AND

RESPONDENT

RULING ON EXTENT OF TAXING MASTER’S JURISDICTION

The facts in relation to this matter are set out in the written submissions filed on behalf of the parties on 1 and 22 November 2012 respectively.

Essentially Mr. McEvoy representing the client herein has raised objection to the allowance of High Court costs in respect of the Family Law proceedings which were initiated by her solicitors in that Court. It is the client’s case that she was not at any stage advised why it was necessary to institute the proceedings in the High Court in circumstances in which the Circuit Family Court had concurrent jurisdiction to hear and adjudicate upon all issues arising in the case. Further, that when solicitors came on record in the action, on behalf of the client’s husband, they raised the jurisdiction issue in a letter of 11 September 2007. The client says that she was not advised of this correspondence either. Accordingly it is asserted that she had no idea it was open to her to pursue proceedings in the Circuit Court which would have resulted in considerably lower costs being incurred by her.

The solicitors’ replying submissions, in essence assert that by executing the Requisition to Tax the costs must be taxed as presented and that the Taxing Master does not have jurisdiction to determine the issue raised on behalf of the client on the basis that such issue goes to the heart of the bill of costs and in fact raises an allegation of negligence against the solicitors. The law, it is asserted specifically precludes the Taxing Master from determining such an issue: O’Brien v Fleming [1946] IR 236.

I have considered the submissions of the parties and have also considered Massey v Carey 26 Ch 459 and Carroll & Sons v Tighe 40 ILTR 150 together with the more recent decision of the High Court in Murtagh & Anor. v Groarke & Sons, Carroll J., 12 October 1995.

In the Murtagh case the court considered the then relevant Statutory provisions together with the case law and it seems clear therefrom that in a case in which negligence is alleged against a solicitor and which goes to the root of the bill of costs presented for taxation on the solicitor and own client basis, a Taxing Master does not possess the jurisdiction to determine whether the costs should be disallowed or even reduced on the basis of such allegation.

The point was strongly made to me by Mr. McEvoy on behalf of the client that the client was not in fact alleging negligence against the solicitor at this stage but was essentially arguing that the solicitor was in mistake and that such costs as had been incurred in the High Court had been unreasonably incurred.

It seems to me that this submission does in fact amount to an allegation of negligence against the solicitor and this appears to have been the view also of Palles LCB in Carroll v Tighe and of Ms. Justice Carroll in Murtagh.

A question arises as to whether the provisions of Section 27 (1), & (2) of the Courts and Court Officers Act, 1995 (which would not have been relevant to the Murtagh decision) have so altered my jurisdiction to enable me consider the negligence issue herein. The relevant sections are in the following terms:

“(1) On a taxation of costs as between party and party by a Taxing Master of the High court, or by a County Registrar exercising the powers of a Taxing Master of the High Court, or on a taxation of costs as between solicitor and client by a Taxing Master of the High Court, the Taxing Master (or Country Registrar as the case may be) shall have power on such taxation to examine the nature and extent of any work done, or services rendered or provided by Counsel (whether Senior or Junior), or by a solicitor, or by an expert witness appearing in a case or any expert engaged by a party, and may tax, assess and determine the value of such work done or service rendered or provided in connection with the measurement, allowance or disallowance of any costs, charges, fees or expenses included in a bill of costs.

(2) On a taxation of costs as between party and party by a Taxing Master of the High Court, or by a County Registrar exercising the powers of a Taxing Master of the High Court, or on a taxation of costs as between solicitor and client by a Taxing Master of the High Court, the Taxing Master (or County Registrar as the case may be) shall have power on such taxation to allow in whole or in part, any costs, charges, fees or expenses included in a bill of costs in respect of Counsel (whether Senior or Junior) or in respect of a solicitor or an expert witness appearing in a case, or any expert engaged by a party as the Taxing Master (or County Registrar as the case may be) considers in his or her discretion to be fair and reasonable in the circumstances of the case, and the Taxing Master shall have power in the exercise of that discretion to disallow any such costs, charges, fees or expenses in whole or in part.”

It appears that under these sub-sections a Taxing Master does have power “to examine the nature and extent of any work done or services rendered or provided by … a solicitor … and may tax, assess or determine the value of such work …”

In my view this provision does not entitle me to enter upon the hearing of a justiciable issue as to negligence or otherwise, which goes to the whole of the bill of costs. The cited case law clearly establishes, in my view that this is the function of the Court.

Accordingly this taxation must proceed. This does not, in my view preclude the client from instituting such proceedings as she may be advised against the solicitors.

Dated the 17th January 2013

Declan O’Neill

Taxing Master.