Cremin -v- Lynch
High Court
Judgment was delivered by Mr Justice Herbert on May 27th, 2008.
JUDGMENT
The High Court was asked to review the costs awarded by the taxing master against a lay litigant. It held that the specific circumstances of the case must always be taken into account, and that the taxing master had erred in relation to one item by not taking them into account. However, it upheld his rulings on three other items.
BACKGROUND
The case was an appeal by a firm of solicitors against the amount of costs awarded to the firm by the taxing master against lay litigants, Noel, Mary and Troy Cremin. These costs arose from litigation where the applicants, the Cremins, had made serious allegations against the defendant, Seán Lynch. Their claim was dismissed as an abuse of the process of the court by an order of the High Court in July 2004.
They appealed this decision to the Supreme Court. After almost a year, Mr Lynch sought an order in the Supreme Court striking out their appeal on the grounds that they had failed to prosecute their appeal. In May 2005, the Supreme Court granted his application to serve notice of motion and grounding documents on the applicants by ordinary pre-paid post. His solicitors said they had previously unsuccessfully attempted to serve the documents on the applicants in person.
In June 2005 the third-named defendant, Troy Cremin, sent a fax to the solicitors saying that the books of appeal had been lodged in the Supreme Court office, and asking them not to proceed with the motion to strike out. The solicitors went ahead and the motion was heard in the Supreme Court, where Mr Lynch was represented by senior and junior counsel, attended by a legal executive and the plaintiffs represented themselves. The motion to strike out was granted, and costs awarded to the defendant, to be taxed by the taxing master. This appeal relates to these costs.
In June 2006, the Supreme Court was advised that the plaintiffs were discontinuing their appeal. In January 2007, it awarded all the costs of the appeal to the defendant.
The disputed costs relating to the motion were €247.50 for personal service of the notice of motion, €1,000 for the attendance of junior counsel, €322.08 in mileage for the legal executive travelling from Limerick to Dublin and €3,000 of a solicitor's instruction fee. The taxing master disallowed the first three, and allowed only €1,500 on the instruction fee, later increased to €1,600. The solicitors appealed against his decisions.
His grounds for disallowing the fee for the service of the notice of motion was that personal service amounted to "over caution". The disallowing of the junior counsel's fee was that he did not consider it was necessary to retain two counsel on such an application.
He found the mileage for the attendance of the legal executive should not be allowed because she did not have a right of audience in the Supreme Court, and normally such a task would be undertaken by a solicitor's town agent. In relation to the instruction fee he stated that he considered €1,500, later increased to €1,600, to be adequate for the "work done".
DECISION
Mr Justice Herbert stressed at the outset: "The nature of the plaintiff's claim in this action is of great significance. The plaintiffs allege that the defendant, in the conduct of his profession as a barrister, was responsible for initiating a fraudulent set of proceedings to be taken against them . . . it would be difficult to think of a more serious and damaging allegation against a barrister in the course of his profession." Referring to the charge for personal service of the notice of motion, he said that the relevant rules of court did not require it and he upheld the decision of the taxing master.
In relation to the fee for junior counsel, however, he said that the facts of this particular case, and the critical nature of its very existence for the defendant, meant that the taxing master erred in concluding that it was not reasonable nor prudent to brief two counsel in it. Referring to the claim that the junior counsel had not attended in court, he pointed out that this had not been considered by the taxing master.
Turning to the mileage for the legal executive, he first concluded that it was appropriate for her to attend, as she was not purporting to be a solicitor, she was familiar with the case and acting under the supervision of the principal in the firm. However, he questioned the amount of the mileage, pointing out that the €322.08 was based on €1.32 a mile. The solicitors "certainly would not be entitled to recover mileage charges on the basis of a solicitor and in particular a solicitor at senior partner level", he said. He reduced the mileage to the public service rate of 60.84 cent a kilometre.
In relation to the instruction fee, while the taxing master might be expected to analyse the work involved in deciding on a fee, and had not done so, the onus lay on the solicitors to demonstrate that he erred in principle in awarding the fee he did, and they had not done so. He would therefore confirm the sum and dismiss the appeal. The full text of the judgment is on www.courts.ie
Applicants appeared in person; Andrew Walker BL, instructed by Holmes, O'Malley, Sexton, for the defendant