[2016] IELCA 1
THE HIGH COURT
2007 713 JR
BETWEEN
PATRICK BROWNE
APPLicant
AND
KERRY COUNTY COUNCIL
RESPONDENT
AND
AN BORD PLEANALA
NOTICE PARTY
1. This is a taxation of the costs of the Respondent pursuant to Order of the Court (Hedigan J.) made on 30 November 2009. The Applicant’s Appeal to the Supreme Court against the Award of costs against him was dismissed by that Court on 24 March 2014 with no Order as to costs of Appeal.
2. The background to the matter and the legal issue which arose for determination by the High Court is comprehensively described in the Judgment of the Court delivered 9 October 2009 [2009] IEHC 552 which I confirm having considered together with the Respondent’s solicitor’s file and papers. I have also considered the respective parties’ Affidavits and written legal submissions.
3. The issue for determination by the Court concerned the proper construction of s.261 (6) (a) of the Planning and Development Act, 2000 having regard to the provisions of s.251 of the same Act.
4. It was the Applicant’s contention that certain conditions dated 26 April 2007 which the Respondent purported to impose on the operation of a quarry pursuant to s.261 of the Act had been imposed outside of the time limit prescribed by s.261 (6) (a) thereof. An Order of Certiorari quashing the decision of the Respondent was sought.
5. The facts of the dispute were not in dispute. It was common case that the quarry, which commenced operation prior to 1 October 1964, was registered by the Respondent on 26 April 2005. On 26 April 2007, the Respondent made a decision imposing conditions on the quarry pursuant to the provisions to which I have already alluded.
6. The Applicant issued the required Notice of Motion seeking leave to apply for relief by way of Judicial Review, together with a Grounding Affidavit and a Statement of Grounds of Application. This occurred in June 2007 and it was at that stage that the Respondent’s Law Agent was instructed. The relevant documents and legislative provisions were considered. Counsel drafted a replying Affidavit which was sworn by the Respondent’s Director of Services, Planning Section, and written legal submissions were exchanged prior to the hearing of the leave application.
7. The Respondent’s solicitor briefed both Senior and Junior Counsel for the hearing of the application, which was granted by Order of Cooke J. made on 2 February 2009 and which also allowed the Applicant to serve amended grounds of application and in consequence, the filing of amended grounds of opposition. The amended Pleadings were duly filed and served.
8. Updated briefs for Counsel were furnished and the application was heard on 26 June 2009. The Court’s reserved Judgment was delivered on 9 October and the Costs Order made on 30 November 2009.
9. My consideration of the Respondent’s solicitor’s file confirms that, by its nature, the professional work, by way of analysis of the legal issue which arose, was primarily within the domain of Counsel. Of course the solicitor for the costs carried the responsibility of considering the issue in the first instance and providing advices thereon. There is also the not inconsiderable responsibility of instructing and briefing Counsel quite apart from carrying out the administrative tasks which arose. The fact remains that the work leading to, and the resolution of this case revolved around legal argument. Mr. McEvoy has emphasised the importance of the issue not only to the Respondent but to all Planning Authorities in the jurisdiction and I accept that there is a relevant factor.
10. Mr. Twomey, on behalf of the Applicant submitted that the instructions fee of €35,000 which is claimed herein made no sense given the nature and extent of the solicitor’s work. In his view, essentially the same work and issues were involved in the preparations for both the leave and the substantive applications.
11. I am not satisfied that the cases relied upon by the Respondent as suitable comparators in justification of this instructions fee can reasonably be characterised in this fashion. Neither case involved the determination of net issues of law. Each case involved a consideration of the planning or adjudication process, not present in the instant case.
12. Mr. Twomey has advised me that a total of €42,804.07, inclusive of €7200 for a planning appeal has been paid to the Applicant’s solicitor but that this included fees in respect of two other Judicial Review cases in which the Applicant’s solicitors were acting. While I am grateful for this further information it is not of real assistance since no breakdown or explanation has been provided as to how these sums were arrived at.
13. I will allow an instructions fee broken down as follows:
1. For taking of initial instructions; instructing Counsel;
serving Respondent’s opposition papers and
submissions; attendance at Court when leave granted: €6,000.00
2. Preparation for substantive hearing; filing and serving
amended Statement of Opposition, attendance at Court
for hearing on 26 June 2009. I allow for the attendance
of a town agent at the two subsequent hearings (taking
Judgment and re Costs): €7,000.00
______
€13,000.00
Counsel
Items 36, 39: (Senior Counsel’s Brief fees €7500 and Junior Counsel
€5000 on leave application)
14. Senior and Junior Counsel were briefed to oppose this application which resulted in the Court granting the required leave but subject to delivery of amended grounds. Obviously the substantive issues were not considered in detail but, equally, the nature of the case being propounded required careful consideration and analysis. It seems that the preparation by Counsel was for a telescoped hearing but this did not in fact occur although written submissions were exchanged. I think it appropriate to take this aspect into account in the assessment of the brief fees for the substantive application.
15. In my view a Senior Counsel’s brief fee on the leave Application is reasonably allowed as between party and party at €3000 with €2000 in respect of Junior Counsel’s fee.
Items 46, 48: (Counsel’s fee on written Submissions)
16. I will allow €1500 and €1000 respectively on the basis that such fees are reflective of reasonable refresher fees.
Items 77, 80: €7500 and €5000 respectively (Brief fees on substantive
hearing)
17. It is appropriate to take into account all preparatory work, the importance of the application to the parties, and the public importance thereof. In my opinion the fees as marked by Counsel are reasonable and are allowable as between party and party.
Item 88: (€500)
18. This is Senior Counsel’s fee on taking Judgment. I reduce it to €300 as being appropriate between party and party.
Item 97: (€750 postage & sundries)
19. A substantial part of the file submitted to me is referable to the subsequent period relating to the Supreme Court Appeal. In my opinion the appropriate allowance is €350.00.
Dated the 1st day of June 2016
Declan O’Neill
Taxing Master.