[2012] IELCA 14
THE HIGH COURT
2009 NO. 4671 P
BETWEEN
ITA COLGAN
PLAINTIFF
AND
ANDREW PURCELL
DEFENDANT
RULING ON INSTRUCTIONS FEE, BRIEF FEES AND CERTAIN EXPERT WITNESS FEES.
The Plaintiff was 36 years old when she was involved in a serious road traffic accident on 8
March 2007 at Marlinstown Mullingar. It was the Plaintiff’s case that she was in the process of
travelling through the roundabout on the Ardmore Road when a collision occurred between her
vehicle and a large van which was travelling on the Dublin to Mullingar roadway. It appears
that both vehicles may have been actually on the roundabout when the collision occurred and as
a result thereof the Plaintiff sustained very severe injuries. She was diagnosed at the Accident
& Emergency Dept. of Midland Regional Hospital Mullingar as being deeply unconscious and with
a major chest injury, injuries to her abdomen and pelvic fracture. It was also clear that she had
suffered a major brain injury. The prognosis was not good. A tear in her aorta was diagnosed
and she was transferred to the Intensive Care unit in St. James’ Hospital Dublin where she
underwent emergency surgery from which she recovered.
The neuro-surgical opinion was that
her brain injury could not be improved through operative intervention. The situation was
thought to be hopeless but the Plaintiff began a slow recovery.
While her physical injuries were treated and recovery was noted, her brain injury was severe.
She was transferred to the National Rehabilitation Unit and was ultimately discharged home on
24 August 2007. The expert neuro-surgical opinion was that whilst the Plaintiff had returned
home she had suffered a devastating brain injury from which she would never make a complete
recovery and that her ultimate disability arising out of the accident would be major and
permanent. This indeed proved to be the case with impairment of cognitive linguistic ability,
poor abstract reasoning, impulsivity, impaired story recall and difficulties with problem solving
and decision making. She had also demonstrated a lack of insight into some of her disinhibited
behaviour and she was also exhibiting obsessive behaviours including childish and dependent
behaviour.
The Plaintiff is married with two children and the nature of the Plaintiff’s behavioural problems
gave rise ultimately to the relevant experts advising that significant house adaptation would be
required in order to provide the Plaintiff and the family respectively with reasonable privacy
while concurrently providing appropriate facilities by way of aids, appliances and carer attention
to the Plaintiff.
The Plaintiff’s husband is a care attendant at Mullingar Hospital and following the Plaintiff’s
return to the family home he took carer’s leave as she required close supervision at all times.
This is an aspect which was of relevance to the calculation of past and future special damages
and is referred to later.
In consequence of her acquired brain injury, the Plaintiff had no recollection of the
circumstances surrounding the accident and a complete conflict arose as to the positions of the
respective vehicles both immediately prior to and at the point of impact, including conflict in
relation to the speed at which the respective vehicles were travelling. There was a complete
denial of liability on the part of the Defendant with pleas of contributory negligence against the
Plaintiff. The action was subsequently settled at €1.5 million and it is common case that this
sum represents 40% of the full value of the Plaintiff’s claim.
The taxation of the Plaintiff’s bill of costs was commenced on 27 April 2012, the Plaintiff being
represented by Mr. Roarty on the instructions of the Plaintiff’s solicitor with Mr. McCann
representing the Defendant. Both Mr. Shane Johnston, Solicitor for the Plaintiff and Ms.
Jacqueline Smith, Solicitor for the Defendant also being in attendance. I was advised that the
scheduled items in the bill had been agreed between the parties and there remained only the
instructions fee, certain fees of Counsel and certain of the witnesses’ expenses to be taxed. The
taxation process has proved to be a lengthy one. The taxation was not completed on 27 March
and was again before me on 4 and 9 May when evidence was heard and submissions were made
both by the legal costs accountants and the respective parties’ solicitors. The taxation was
concluded on 5 July 2012 when I reserved my ruling.
Mr. Roarty made quite detailed and lengthy submissions in relation to the work undertaken by
the Plaintiff’s solicitor and he was supported, at times, in this regard by Mr. Johnston, Solicitor.
A description of the work undertaken by the solicitor from date of receipt of instructions on 2
April 2007 up to and including the work involved in negotiating the settlement and its ruling on
11 June 2010 was provided. At the conclusion of the taxation I retained the Plaintiff’s solicitor’s
correspondence files and other papers including full brief for Counsel, all of which I confirm
having now carefully considered
Having described the work of the Plaintiff’s solicitor Mr. Roarty then provided a breakdown of
the manner in which the instructions fee which is claimed in the sum of €240,000 had been
arrived at. There were four elements to the fee as follows:
1.
Taking of initial instructions and initiating investigations both in regard to liability and
quantum which covered the period from April 2007 to date of issue of the Personal
Injuries Summons on 22 May 2009. It was estimated that 70 hours work had been
involved and the appropriate solicitor’s professional fee in respect of this period was
stated to be €30,000.
2.
From date of initiation of the proceedings on 22 May 2009 to receipt of the defence on
11 December 2009 it was estimated that a further 90 hours work was involved which
was valued at €60,000.
3.
The preparations for trial brought the matter up to the beginning of June 2010 and in
respect of which period it was estimated that a further 180 hours of solicitor’s
professional time was expended resulting in professional fees amounting to €130,000.
4.
The trial period running from 8 to 11 June 2010 and in respect of which period 50
further hours were estimated to have arisen giving rise to fees in the order of €20,000.
The principal features of the work relating to the first period of time referred to above were
stated to be as follows:
1.
The taking of initial instructions from the Plaintiff’s husband and the difficulties in this
regard given the husband’s considerable upset at the situation. There was also great
concern as to the circumstances, and the possibility that the Plaintiff was the author of
her own misfortune.
2.
Enquiries with the Gardai in relation to their investigations and culminating in the
holding of a watching brief at a District Court prosecution of the Defendant under
Section 52 of the Road Traffic Act, 1961 arising out of which the Defendant was
convicted and fined.
3.
The evidence of an independent witness Ms. B. Nally being described as critically
important as was the examination of the statements taken by the Gardai and in
particular the statement of the PSV Inspector.
4.
As of April 2008 instructions were received to proceed with the initiation of an action
against the Defendant - all necessary arrangements being made for medical
examination of the Plaintiff. At that stage reports were sought from Dr. Jacinta Morgan,
Consultant in Rehabilitation Medicine and Mr. Peter Magill, Consultant Surgeon who had
treated the Plaintiff upon her initial admission to A & E in Mullingar.
5.
Instructions to Tony O’Keeffe, Consulting Engineer, to carry out inspection of the scene
and report. He was supplied with the Garda Abstract.
6.
Frequent attendances on the Plaintiff’s husband explaining the position to him and the
great concern at the Plaintiff’s lack of any memory of the accident was emphasised with
particular reference to the importance of the Garda statements and independent
statement of a witness. It was stated that the Defendant’s statement to the Gardai did
not contain any mention of a speed issue.
7.
The solicitor actually attended at the scene of the accident and drove on the roundabout
in order to gain an appreciation of the circumstances; details of the injuries were
provided to the Defendant’s insurers as of May 2008 and it was clear from letter of 27
June 2008 from Hibernian Insurance Company that liability would be in issue.
8.
Consideration of Mr. O’Keeffe’s Report (at that stage the Garda Abstract was sent to
him).
9.
Facilitating neuro-surgical examination of the Plaintiff by Defendant’s insurers and
special arrangements being necessary.
10.
Consideration of report of Dr. Morgan which recommended examination of the Plaintiff
by a neuro-psychologist and psychometric studies: Dr. Niall Pender being ultimately
instructed in this regard.
11.
Consideration of supplemental report of Mr. O’Keeffe, Engineer and the basis of his
ultimate conclusion that the accident had been caused by the Defendant.
12.
Correspondence with Counsel in regard to drafting of the Personal
Injury Summons;
instructions also to Actuary and obtaining report at this stage – two aspects to the
report, firstly the Plaintiff’s past and future loss of earnings and secondly the loss of
earnings of the Plaintiff’s husband and possibly into the future.
In relation to this phase of the work it was emphasised that there were numerous attendances
on the Plaintiff’s husband throughout the period but it being accepted that only four attendance
notes in respect thereof appear on the file. Mr. Johnston Solicitor explained that the Plaintiff’s
husband was frequently instructing him in relation to the Plaintiff’s condition and arrangements
were being made for medical examinations during this period. He accepted that there were no
notes of the many phone calls which he had with the husband in this regard and that there was
no evidence whatever on the file to support this aspect.
It was also asserted that there were four attendances outside the office and that 31 items of
correspondence had been received with 81 items being sent during the period. It was
estimated that there were 30-40 telephone conversations during the period and medical
facilities were provided for the examination of the Plaintiff by the insurer’s expert on one
occasion. In addition the reports of the engineer and the two medical experts had been
obtained.
In reference to the second period of work namely from date of initiation of the Personal Injury
Summons on 22 May 2009 to receipt of defence on 11 December 2009 the following was
emphasised.
1.
Issue of the proceedings.
2.
Receipt of notice for particulars 8 July 2009 which necessitated further attendance on
the Plaintiff’s husband to take instructions in relation to some of the matters raised
therein.
3.
Instructions were also provided to Ms. Noreen Roche, Nursing Consultant.
4.
Medical facilities continued to be provided to Defendant for examination of the Plaintiff three separate arrangements in this regard and the logistics involved in making these
arrangements were emphasised.
5.
The replies to the notice for particulars were finalised and settled by counsel.
6.
The report of Dr Pender was received – it being detailed in nature dealing with the
Plaintiff’s brain function and disabilities also being emphasised.
7.
Details of the Special Damages were gathered including travelling expenses and all
furnished as an addendum to the replies to particulars.
8.
Correspondence was entered into with Dr. Pender in relation to his report.
9.
Consideration of notice for further and better particulars as to the Plaintiff’s work record
being received on 4 September 2009 and replies thereto of 12 October 2009.
10.
Continuing provision of medical examination facilities to the Defendant.
11.
Consideration of report of Ms. Noreen Roche which required careful checking. This
being received on 6 November 2009.
12.
Consideration of the full defence received on 11 December 2009 and which also pleaded
contributory negligence to the effect that the Plaintiff was the author of her own
misfortune.
It was stated that there were 5-10 attendances on the Plaintiff’s husband during this period.
Twenty three pieces of correspondence were received with 38 letters being issued. There were
30–40 telephone conversations and medical facility arrangements were provided on four
occasions in addition to which the Actuary’s report had also been received together with Dr.
Pender’s and Ms. Roche’s respective reports.
In relation to the third period under consideration the principal features were as follows.
1.
Seeking and obtaining Senior Counsel’s advice on proofs; 16 pages in all and
compliance therewith involving further correspondence with Mr. O’Keeffe, Engineer in
relation to the speed aspect of the case; further correspondence with Ms. Roche,
Nursing Consultant concerning the necessity for alterations to the Plaintiff’s living
accommodation to facilitate both her and the family and also the provision for carer
accommodation.
2.
Consideration of updated report from Dr. Morgan and seeking the admission by the
Defendant that the Plaintiff would never be in a position to return to work thus obviating
the necessity of obtaining a report from a Vocational Rehabilitation Consultant.
3.
Pursuant to Counsel’s directions obtaining report of Dr. McGovern, Cardiothoracic
Surgeon in regard to the operative treatment received by the Plaintiff and prognosis.
4.
Enquiries concerning the nature and extent of the home care package which the Plaintiff
was receiving and would require in the future - Home Care Ireland being involved.
5.
Setting the action down for trial and the difficulties which arose given the Defendant’s
inability to be in readiness for trial resulting in re-arranging the date thereof with the
necessity of setting the action down for trial a second time.
6.
Dealing with the Defendant’s request for discovery of the radiology relating to the
Plaintiff and all enquiries in this regard.
7.
Considering the position concerning the Plaintiff’s relationship with her husband and
children and consulting with Ms. Roche, Nursing Consultant in this regard relating to the
accommodation aspect already referred to.
8.
Correspondence with all witnesses with regard to the trial date.
9.
Conducting interview with Ms. Bridget Nally (the independent witness) and preparing an
attendance note.
10.
Dealing with further request by the Defendant for discovery of hospital notes from St.
James’ Hospital Dublin - ultimately 214 pages of notes being obtained and furnished to
the Defendant’s solicitors on 31 May 2010.
11.
Instructing Mr. Simon Hoe, Architect to inspect the Plaintiff’s house and to advise upon
and design appropriate alterations with consequential instructions to Sean Nolan & Co.
Quantity Surveyors. It was emphasised that there was a lengthy conversation with Mr.
Hoe in regard to the nature of his report.
12.
Preparation of schedule of Special Damages and compliance with S.I. 391 obligations.
13.
Dealing with the Defendant’s queries concerning the Plaintiff’s earnings prior to the
accident and all necessary enquiries.
14.
Considering the Defendant’s schedule of witnesses – receipt of experts’ reports and a
full day stated to have been spent in considering these reports (it being accepted that
no attendance note appears on file in this regard).
15.
Updating of Actuary’s report and report from Dr. Morgan.
16.
Issuing subpoenae by way of arranging for attendance of the Gardai at court; furnishing
Plaintiff’s experts with copies of the relevant Defendant’s reports for comment.
17.
Preparation of brief for Counsel which was issued on 20 May 2010.
18.
Receipt of Defendant’s engineer’s and further medical reports.
19.
Receipt of Defendant’s actuarial report (4 June 2010); contact with Counsel in this
regard and furnishing also to Actuary.
20.
Preparation of updated Special Damages claim.
21.
Arranging and obtaining report of Ms. O’Connell of Acquired Brain Injury Ireland and
furnishing to Defendant.
During this period it was emphasised that whilst only two attendance notes appear on the file
there were in fact 10-15 attendances on the Plaintiff’s husband. There had been 47 items of
correspondence received with 112 letters sent out. There were 40-50 telephone attendances
and 3 further sets of correspondence by way of facilitating the Defendant’s continuing medical
investigations were provided. The proofs had been fully complied with and all discovery sought
by the Defendant had been furnished together with all necessary particulars, the briefs had
been prepared and arrangements had been made for attendance of witnesses. During the
period a report of an Architect, Quantity Surveyor and medical reports relating to the acquired
brain injury, rehabilitation and cardiothoracic aspects were received.
In relation to the final period of work which runs from 8 – 11 June 2010 the following was
emphasised:
1.
Receipt of updated schedule of witnesses from the Defendant and the comments of Ms.
Roche, Nursing Consultant being obtained in relation to the Defendant’s corresponding
experts’ reports.
2.
Receipt of final accounts in regard to the costs of the Plaintiff’s past and ongoing
treatment and updating specials.
3.
Consideration of updated Actuary’s report.
4.
Further updated particulars of specials provided to the Defendant on the night of 8 June
2010 (first day listed for hearing) – offer of settlement having been received. It being
stated that settlement negotiations were ongoing throughout the four days in which the
matter was in the list and in addition the solicitor had been in contact with the various
witnesses throughout.
5.
Receipt of further report from Defendant on 10 June 2010.
6.
Receipt of offer of settlement of 11 June 2010 of €1.5 million which was considered to
constitute 40% of the full value and following consultation with the Plaintiff and her
husband it was decided to put it to the court and subsequently ruled.
During this period it was emphasised that a pre-trial consultation had also taken place. There
were four full days in court. Three pieces of correspondence had been received with five being
sent out. There were
40–50 telephone conversations and there had been preparation of
updated schedules of special damages and furnishing of reports to Ms. Roche and the Actuary.
Finally, Mr. Roarty referred me to the provisions of Order 99 Rule 37 (22) (ii) and emphasised
the extremely complex nature of the medical aspect to the case involving brain injury. The
liability aspect was very contentious with the settlement amounting to only 40% of the true
value and which was accordingly in the order of €3.75 million.
It was asserted that this case is at the top end in terms of difficulties taking into account the
nature of the injuries and the liability aspect. The responsibility accordingly was great. The
solicitor had 25 years experience and brought all of this to bear in order to build the case.
It was submitted that the skill, specialised knowledge and time and labour involved in the case
was considerable. In relation to special skills the Plaintiff’s solicitor emphasised his involvement
with the Plaintiff’s husband and the client throughout and that it was also necessary to take into
account the needs of the Plaintiff’s children and all of this required to be imparted to the various
experts.
In response to my reference to the observations of Mr. Justice Barron in Best v Wellcome
[1996] ILRM 34 with reference to the involvement of experts of a similar nature in relation to
the assessment of damages and the observation of the Court that the Plaintiff’s solicitor is
principally guided by such experts who in fact carry out the investigative work on quantum, Mr.
Johnston Solicitor was in disagreement with this view and emphasised the necessity of checking
the accuracy of the experts’ reports and spending time with the experts in relation to aspects of
the case which the Plaintiff obviously could not get across to them.
Finally it was submitted that in assessing the instructions fee I should have regard to the full
value of the Plaintiff’s claim. Cafolla v Kilkenny & Ors. [2010] IEHC 24 being cited as authority
for this proposition.
By way of replying submissions Mr. McCann commenced by referring to the fact that the
Plaintiff’s solicitor had not kept sufficient attendance notes and no time records but had now
presented estimates of the time which he had retrospectively assessed as having been
expended in the course of the prosecution of the Plaintiff’s case. In this regard, Cafolla v
Kilkenny & Ors. was cited as authority for the proposition that a solicitor who fails to keep
proper time records, in light of the statutory provisions which include time as one of the factors
to be taken into account in assessing costs, creates a problem of the solicitor’s own making.
Reference was made to the fact that Mr. Johnston Solicitor had, during the course of the
taxation, expressed his embarrassment at the lack of detail on the file.
In view of the lack of detail it was asserted that the problem created is the inability of either the
Defendant or the Taxing Master to decide whether the costs associates with attendances which
are stated to have taken place and in respect of which there is no documentary evidence,
should be allowed on a party and party basis or whether they would in any event be allowable
solely as between solicitor and own client. Further, it was submitted that the estimates of time
which were provided were insufficient and non-specific in regard to the relationship of the work
which had been described with the hours claimed to have been expended.
The total hours claimed in the case had been put at 380 and in Mr. McCann’s view, having read
the solicitor’s file, the appropriate number of hours would be more in the order of 220.
The various phases of the work as described in support of the instructions fee were considered
and commented upon with the following points being stressed.
1.
The issue as to loss of earnings into the future should be confined to consideration of
the Plaintiff’s own losses given that the actuarial fees in relation to the Plaintiff’s
husband’s alleged losses had been disallowed.
2.
In considering the fee it is appropriate to allow for the holding of a watching brief in the
District Court.
3.
A case to Counsel to settle the proceedings had been prepared by the solicitor and this
work should be taken into account.
4.
However, the notice for particulars which was received had been sent to Counsel and it
was he who drafted the replies thereto. No further fee should be allowed accordingly in
respect of solicitor’s work under this heading.
5.
As to attendances and correspondence the appropriate instructions fee could only be
assessed by reason of the work disclosed on the file.
6.
I should take into account the fact that the action was four days in the High Court list.
7.
As to specialised skill, I should consider this in the context of the submissions which had
been made including those of Mr. Johnston Solicitor.
8.
In relation to the value of the case, it was a fact that same was settled at €1.5 million
and ruled accordingly as constituting a reasonable settlement. Whilst the true value
may be considered, the Plaintiff cannot be rewarded and the fee cannot be assessed on
such value. It was asserted that the medical evidence was relatively light there being
only four expert reports in this regard. Counsel had drafted all of the pleadings. Whilst
liability had been hotly contested, the engineer had been allowed a substantial fee for
preparing his report and in relation to consideration of the Garda Abstract and
statements the Taxing Master should take into account the actual work shown to have
been carried out by the Plaintiff’s solicitor in considering this aspect.
9.
As to novelty and intangible factors it was stated that the work as described does not
support the fee which is sought.
One comparator case was proffered namely McGrath v Stone Developments 2004 No. 5627 P.
This was an employer’s liability case involving injuries to the Plaintiff’s spine whilst in the course
of his employment with the Defendant and resulting in paralysis from the waist down. The
proceedings were issued in April 2004 with a Statement of Claim in November of that year.
There was apparently
an issue as to whether the incident which it was alleged gave rise to the
injury did in fact take place during the course of the Plaintiff’s employment with the Defendant
and further whether a series of separate incidents might have precipitated the injury. The
Plaintiff’s Consulting Engineer considered the case to be highly unusual. It was fully fought and
involved discovery of the Plaintiff’s medical records together with the separate discovery of the
Defendant’s safety documentation, risk assessments or audits. Particulars were exchanged.
Eleven expert witnesses were involved including 5 medical experts, an Actuary, an Engineer, an
Accountant, a Nursing Consultant, an Occupational Therapy Consultant and a Vocational
Rehabilitation Consultant.
The action was settled in August 2007 prior to hearing for €750,000. It was stated that the full
value was in the region of €1 - €1.5 million, that the instructions fee was claimed at €155,000
and settled at €125,000 with Senior Counsel’s brief fees being marked at €45,000 and settled at
€30,000.
In Mr. McCann’s view the appropriate instructions fee should be measured at €142,000 which, it
is asserted and would in fact broadly equate to 380 hours work at €375.00 per hour. The total
hours claimed amounted to 390. It was accepted that an allowance of €1,500 per day for
attendance at court would be reasonable.
In Mr. Roarty’s view the comparator case cited on behalf of the Defendant does not compare
like with like. No brain injury was involved. The accountant’s fees in fact were disallowed in
their entirety and the case did not involve four days attendance at court. The value of the case
was half that of the instant case.
Finally, Ms. Smith, the Defendant’s solicitor submitted in relation to the liability issue that whilst
the circumstances of the accident were uncertain it was not a complex case. In reality three
Garda witnesses were involved together with the engineer and the work of collating the
evidence was not necessarily complex. The time spent by the Plaintiff’s solicitor in considering
the Defendant’s medical reports was excessive.
THE BRIEF FEES.
Given the extensive submissions which I had received relating to the solicitor’s work which
necessarily involved consideration of the documentation which was included in the brief for
Counsel, it was unnecessary to hear further submissions which would constitute repetition of the
issues in the case.
Senior Counsel’s brief fee is marked at €65,000 with €40,000 marked by way of Junior
Counsel’s brief fee. Mr. Roarty provided me with a copy letter from Colm Smyth Senior Counsel
dated 25 April 2012 and a letter of 20 April 2012 from Edward S. Walsh S.C. (although no brief
fee appears in the bill in Mr. Walsh’s name). Mr. McCann asserts, in relation to Mr. Walsh S.C.
that he was in fact engaged in another action for the entirety of the period during which this
case was in the list for hearing in June 2010. While a brief fee in respect of only one Senior
Counsel may be allowed on the party and party basis, I have found Mr. Walsh’s letter to be of
general assistance. It provides a good overview of the case. Further, it is evident that Mr.
Walsh did take part in the final settlement negotiations.
In his letter of 25 April 2012 Mr. Smyth Senior Counsel emphasises the full value of the case
and that both he and Junior Counsel had attended at the scene of the accident in order to gain a
greater insight of its circumstances. Considerable time had been spent in reading and
deliberating on the comprehensive brief and in advising on proofs. Reference is made to pretrial consultations in addition to a lengthy consultation on the morning of the action and the fact
that liability remained in issue throughout with a risk that the Plaintiff’s claim could be
dismissed.
It is stated that Senior Counsel consulted with Junior Counsel in relation to his drafting and
advisory work at every stage of the proceedings and spent considerable time reading and
considering the appropriate law. The projected time for the hearing at 4-5 days was
emphasised as was Counsel’s availability at all times when the case was listed. Counsel had
engaged in lengthy negotiations towards settlement of the case and had appeared at its
ultimate ruling. It being ruled on the basis that the Plaintiff was a person of unsound mind not
so found.
The estimated time spent by Counsel exclusive of the days when the case was listed for
hearing, in relation to consultations, drafting and advisory work, reading the brief, deliberating
on and considering the brief, and reading and considering the relevant law was 40 hours.
Mr. Penrose in his undated letter emphasises to a large extent the work which he undertook
prior to receipt of the brief but again I find it useful to the extent that it emphasises the
difficulties facing the Plaintiff on liability and the fact that Counsel attended on two occasions at
the scene in an effort to understand the circumstances. The importance of the independent
witness Bridget Nally is emphasised and reference is made to numerous discussions with the
Plaintiff’s husband in regard to the home environment. Counsel confirms that it was a difficult
and troubling case which required substantial input on his part and later refers to it as being one
of the toughest cases he was ever involved with. At the commencement of his letter Counsel
notes his local knowledge and “familiarity and friendship over many years with the Plaintiff and
her husband Kevin”.
The Defendant’s assessment of the appropriate brief fee in respect of Senior Counsel is €35,000
with Junior Counsel at €17,500. Upon enquiry as to the brief fee marked by the Defendant’s
own Senior Counsel it was ascertained that €40,000 had been marked with two-thirds thereof in
respect of Junior Counsel. It was stated that these fees had not been agreed and a letter to this
effect would be provided to me. A letter dated 10 July 2012 was subsequently received by me
from McCann & Associates. Two matters are addressed:
a)
it is stated that no bill had yet been raised in the matter by the Defendant’s solicitor;
and
b)
that the brief fees marked by the Defendant’s Counsel amounted to €40,000 and
€26,000 respectively and that “these fees will not necessarily be paid at that level, be
paid (sic) by the insurance company and no decision has been made in this regard”.
It appears from the penultimate paragraph of the letter that ultimately the fees to be paid in
relation to the Defendant’s Senior and Junior Counsel will be decided upon once the taxation of
the Plaintiff’s costs has concluded.
Noreen Roche, Nursing Consultant – Claim €5,584.32.
There are nine elements to the account as follows:
1.
Taking instructions, perusing documentation,
evaluating medical and relevant reports,
arranging interview and assessment with client
2.
€290.00
Travelling to client, interview,
inspection/investigation and examination of client
and environment on 12 /10/09 inclusive of
consulting with ABII plus 10 telephone conversations
with husband re input of ABII
€1,895.00
3.
Travel expenses: mileage 276 miles at €1.32
€364.32
4.
4/11/09 Report, opinion and costings
€650.00
5.
Reply to letters 26/11/09, 14/12/09, 4/02/10,
28/4/10 and 29/4/10
6.
€150.00
8/6/10 and 10/6/10 amended report to include
reduction of previous costings in order to incorporate
husband’s loss of earnings, ABII and HSE
clawback costs
€435.00
7.
7/6/10 Standby to Dublin High Court
€600.00
8.
9/6/10 Standby to Dublin High Court
€600.00
9.
10/6/10 Standby to Dublin High Court
€600.00
TOTAL
€5,584.32
The Defendant took issue with this account primarily on the basis that the rate of €290 per hour
is excessive compared to rates being charged by equivalent experts. Further that the fee of
€600 per day for standing by to attend court is excessive.
Three ’comparator invoices’ were introduced on behalf of the Defendant, as follows:
1.
Sandra Sherlock Associates (Northern Ireland). This is a firm of Nursing Care
Consultants and their hourly rate was stated to be in the order of €120.
2.
Jacqueline Webb & Co., Rehabilitation Cost Consultancy (England).
The hourly rate of charge is €163.
3.
Carmoney Care Consultancy Ltd. (N.I.) Nursing Consultants.
Hourly rate is €155.
Ms. Roche gave evidence that she is not only a qualified Nursing Consultant but also an
Ergonomist and Safety Advisor. She has extensive experience with regard to assessment of
persons with head injuries and such experience going back to the 1970s. She emphasised that
her experience ran right across the board including psychiatric, ergonomic and safety. In this
case the Plaintiff did not herself fully comprehend her condition and there was a safety aspect to
the assessment given the Plaintiff’s condition. This is dealt with in the report in terms of the
accommodation which would be required.
n relation to the comparison with the fees of experts of equal status Ms. Roche emphasised that
Ms. Jacqueline Webb is not in fact a nurse but a Rehabilitation Consultant. Accordingly, when
necessary, a nursing report would also be separately required. It was confirmed that Carmoney
Care Consultancy would be acceptable experts in this jurisdiction to cover the matters which
were dealt with in the instant case.
Ms. Roche advised that she had commenced in practice some 20 years previously and had
added €10 per hour to her rates on an annual basis up to 2009 but had not increased same
again from then until January 2012. Her rate is now at €300 per hour.
In cross examination Ms. Roche explained that her rate per hour is now higher than that
applicable in the U.K. given that she had increased her rates as costs had risen in this
jurisdiction and also in accordance with her qualifications which she had attained over the years
and has a Diploma in Nursing Management, Diploma in Psychology, Dip. Legal & Ethical Aspects
and Dip. Safety Health and Welfare. None of the experts quoted possess all of the qualifications
which Ms. Roche possesses and by way of example she cited Ms. Maggie Sargent, Nursing
Consultant who is not a safety expert and in respect of any such aspect a separate report would
be required.
Rather than increasing her fees Ms. Roche stated that they had in fact been decreased as they
had been left in abeyance from 2009 to 2012. Ms. Roche employs three people, all in a clerical
capacity including an accounts technician. She emphasised that no report leaves her office until
she has double checked it.
In relation to the standby fee charged at €600 Ms. Roche stated that the Taxing Master
following her evidence in a previous case had reduced this to €450. It was claimed that it is
impossible to carry out two or three hour assessments whilst on standby for court and
accordingly it would be necessary to divide her time on this basis. It is impossible to arrange
assessments after 4.30 p.m. as, “people don’t like it ….. when soaps are on etc.”. It was
confirmed that her fees also include carrying out any amendments to the report which are
necessary.
Simon Hoe Architect – Claim €6,126.16.
The account is as follows:
For professional services in connection with accommodation costs report:
Discussion with Mr. & Mrs. Colgan, Shane Johnston & Noreen Roche:
House survey and design of suitable adaptations:
Preparation of report
32 hours @ €153.00 per hour
€4,896.00
VAT @ 21%
€1,028.16
Mileage: 124 miles @ €1.20 per mile
Printing & Postage etc.
€148.00
€54.00
TOTAL €6,126.16
Subsequently Mr. Hoe provided a breakdown of his fees by reference to the time spent on the
case as follows:
20 minutes agreeing commission, recommending Q.S. and set up file:
3 hours 10 minutes travel. (50% of this time only referable to report) i.e. 1 hour 35 mins.
1 hour 30 mins. For meeting with Kevin Colgan, Plaintiff’s husband
5.45 hours in respect of drawing up survey. This was stated to be only referable to the report.
14 hours design house adaptation. However a specification involving services and materials
was drawn up on a preliminary basis and this aspect was put at 3.3 hours as being referable to
the report.
20 mins. Discussion with Noreen Roche.
55 mins. Amendment to report and forwarding to Q.S.
6 hours to complete report incorporating Q.S. costs.
On this basis it was stated that 18 hours 25 minutes of the Architect’s time were referable to
the report only and which brought the fee to the sum of €2,815.20 plus mileage charge, VAT
and printing costs. Accordingly the total claim now amounted to €3,665.50 as opposed to the
sum originally claimed in the bill.
Prior to Mr. Hoe giving evidence submissions had been made in relation to the extent of the
Architect’s fees to which the Defendant should be liable under the heading of costs and on the
basis of the matters decided in Best v Wellcome [1996] ILRM 34 the cost of preparation of a
report would be properly allowable as part of the Plaintiff’s costs but the costs of preparation of
design plans for the development would not, on the basis that such costs constitute Special
Damages which are separately claimed and were included in the final settlement sum.
In the course of his evidence Mr. Hoe was adamant that 25% of the time spent by him in
relation to the preparation of plans concerning the house adaptations was spent in considering
specifications for the purpose of drawing up the report and would include discussions with the
Occupational Therapist. This differentiates the situation from the norm in which discussions
would take place with the client. Further it was stated that the drawings are done in a slightly
different way. In addition Mr. Hoe stated that the 5.45 hours spent by him in drawing up a
survey was exclusively referable to the report as this work involves an inspection and survey in
addition to his normal function. Normally a building surveyor would carry out this work.
In cross examination Mr. Hoe accepted that a sum of €16,000 was included in the Special
Damages to cover Architect’s fees for designing the adaptations.
The Defendant’s submission is that 6 hours only should be allowed for the work for the
preparation of the Architect’s report.
Postage – Claim €5,000.
Mr. Roarty now concedes that the sum claimed is too high but suggests that €2,000 should be
allowed under this heading whereas Mr. McCann proposes that €800 is sufficient.
RULING.
While I am satisfied from my examination of the Plaintiff’s solicitor’s file and papers that
substantial professional work was carried out by the solicitor and I have been able to identify
the principal features thereof, the lack of adequate records in relation to attendances on the
Plaintiff’s husband and others does present a problem. The problem rests with the Plaintiff’s
solicitor as it is of his making.
I am satisfied that I can only assess the nature and extent of the solicitor’s work in this case on
the basis of the documentary evidence presented to me together with any further submissions
by way of explanation thereof. If I can deduce from the documents on file that an attendance
must have taken place or that some advice or service must have been provided I think I am
entitled also to take this into account. I may also, I believe, take into account any submissions
by the solicitor in reference to undocumented work. However, where such work is referred to as
including ‘considerable’ or numerous’ attendances or reference is made to “30 to 40” unspecified
and unrecorded telephone calls, I do think that it would be unjust to the paying party to attach
much weight to such assertions. Unfortunately this is what has occurred here and it is
unsatisfactory in at least two respects:
(i)
It may be impossible to verify that the attendances or telephone calls took place, the
nature of the work which work was done or the necessity for it.
(ii)
Where time records have not been kept and subsequently (as has occurred here) the
time estimated to have been expended takes into account unrecorded attendances, the
problem is compounded.
I can only assess the instructions fee on the basis of the work which I know or can reasonably
deduce has been performed and I have made my assessment accordingly.
The Work.
With the exception of the unverifiable attendances and telephone calls the work is largely as
was set out to me on behalf of the Plaintiff. I must take into account the taking of initial
instructions from the Plaintiff’s husband and the fact that the Plaintiff was never, at any stage,
competent to provide instructions to the solicitor. On the liability side the husband could not be
of assistance either and accordingly the statements provided to the Gardai in the course of their
investigation, ultimately were of great significance.
It is clear from the file that Mr. Johnston Solicitor, did not himself attend at the District Court
on the two occasions when the prosecution of the Defendant was listed but an assistant did
attend and an attendance note in this regard records the evidence adduced and the outcome.
The Garda statements were received thereafter and the report of Mr. Tony O’Keeffe Consulting
Engineer was received in July 2008. The Garda Abstract and statements were later forwarded
to him.
The appropriate medical investigations were initiated and reports sought from Dr. Morgan
Consultant in Rehabilitation Medicine, Dr. Pender, Neuro Psychologist and Mr. Magill, Consultant
Surgeon.
Upon receipt of the Consulting Engineer’s amended report the solicitor commented in a letter to
the Plaintiff’s husband of 17 September 2008 that it “doesn’t really tell us an awful lot more
than we already know other than the fact that there are some photographs”. When an updated
report was received the solicitor commented in a further letter of 8 October 2008 to the
husband that “I don’t know if there is anything in it of any real value”.
The solicitor’s reference to frequent attendances on the Plaintiff’s husband for the apparent
purpose of explaining the importance of the Garda and other witness statements in the light of
the Plaintiff’s lack of memory of the accident would not, even if attendance notes had been
kept, be considered of relevance to the determination of the liability issue.
The Plaintiff’s solicitor met with Ms. McNally the independent witness to the aftermath of the
accident and who also saw the tail lights of the Plaintiff’s car prior to the accident and heard the
engine noise of the Defendant’s vehicle. An attendance note of the meeting was made.
It is
quite brief.
The advice on proofs is dated 23 November 2009. It is clear therefrom that as of that date the
attendance note relating to the District Court conviction of the Defendant for careless driving
had not been provided to Senior Counsel. He enquired as to the nature of the evidence which
had been adduced and whether or not a plea had been offered. Clearly, Senior Counsel
carefully examined the statements of each of the Garda witnesses, the independent witness
Bridget Nally and he analysed the Engineer’s report for the purpose of providing his advices.
Senior Counsel noted the Engineer’s view that “evidence of the independent witness was
overwhelming because she confirmed the Plaintiff had applied her brakes and that the van was
travelling at high speed and indeed the latter point is verified from the Garda Abstract”. Noting
also the Engineer’s view that as a matter of probability the Defendant’s vehicle was travelling
well in excess of the prevailing speed limit, Counsel enquired if the Engineer could “undertake a
calculation as to the impact speed on the basis of the position of the vehicles post accident”.
The Plaintiff’s solicitor duly conveyed Counsel’s enquiry to the Engineer in a letter of 26
November 2009 but it is unclear if this aspect was developed further. The solicitor’s attendance
on Ms. Nally did not in fact take place until the following year on 26 May 2010.
Ultimately arrangements were made for the attendance at court of all the witnesses as to
liability and it does not seem that there was further work in this regard until the pre-trial
consultation. Certainly the solicitor had attended at the scene of the accident and of course
arrangements had to be made for attendance of witnesses at the trial.
Ms. Smith Solicitor for the Defendant submitted to me that while the issue was complicated it
was not complex in nature. It does appear to me that the investigative aspect of the liability
issue did not present complex problems to the Plaintiff’s solicitor.
The witnesses were those identified in the Garda Abstract report. The Plaintiff would be bound
by their evidence and that of the Engineer. Clearly the Plaintiff’s solicitor was greatly
concerned. Concern alone does not constitute work but can be taken into account under the
heading of ‘importance to client’.
I am satisfied from my perusal of the file that the Plaintiff’s solicitor conscientiously and expertly
addressed all issues relating to liability as were necessary and briefed to Counsel all necessary
documentation in that regard. He also, of course, in conjunction with Counsel had ultimate
responsibility for advising the client and in particular the client’s husband of the risks attendant
to proceeding to trial in light of (a) the uncertainty surrounding the liability issue and (b) the
offer of settlement at €1.5 million being greatly below full value.
On the quantum side this was clearly a case involving catastrophic injuries albeit that the
Plaintiff’s condition had greatly improved physically. Her acquired brain injury was such that
her previous full and happy lifestyle as a wife, mother and member of the wider workforce was
no longer available to her. While she was aware of her disability she did not have full
appreciation of her disinhibited behaviour and its effect on family life.
The injuries and their sequelae both physical and psychological were investigated in the fullest
possible manner with the appropriate range of expert advice being obtained.
Reports and updated reports as necessary were obtained from a Consultant Surgeon, a
Consultant in Rehabilitation Medicine, a Neuro Psychologist, a Cardiothoracic Surgeon, a Nursing
Consultant, an Architect, a Quantity Surveyor, an expert in Acquired Brain Injury and an
Actuary.
Mr. Johnston explained that all of the reports had to be considered by him and explained fully to
the Plaintiff’s husband. I accept that this was done and it is clear that some reports were sent
by letter to the husband and commented upon by the solicitor. There were follow up
discussions with him, the number and duration of which cannot now be ascertained.
While I take Mr. Johnston’s point concerning the necessity of ensuring that the various reports
were factually correct and addressed all relevant issues, especially having regard to the
Plaintiff’s circumstances, equally of relevance, in my opinion is the observation by the court in
Best v Wellcome to the effect that it is the experts who carry out relevant work and for which
reasonably substantial fees are paid. The solicitor’s work in obtaining such reports is important
to the success of the Plaintiff’s case but must be considered in the context of the work
performed by the experts. While the husband’s loss of earnings into the future did not
ultimately arise this aspect was considered as were the costs which would arise if he were to
become a full time carer for his wife. This was not ultimately pursued either and in the final
analysis I would not consider this aspect to have any considerable impact on the instructions
fee.
The pleadings and particulars were, in the main, drafted by Counsel but the solicitor supplied
Counsel, having made the necessary enquiries, with the relevant instructions.
The case was conducted with all the skill an experienced litigator must bring to bear on a
substantial and important case but no special skills have been identified to me which would
bring this case, from the perspective of the solicitor’s work, into the unusual or unduly onerous
category. This is not to disregard that the work required to bring it to a successful conclusion
was substantial – its nature and extent has, I hope, been adequately outlined at this stage. Nor
do I disregard the importance of the matter.
The real value of the case which should inform the assessment of the instructions fee was also
the subject of some debate before me. In my view the only monetary value to which I should
have regard is the amount quoted in the Order approving the settlement, namely €1,500,000.
That is not to say that I cannot have regard to the overall magnitude of the case and the extent
of the work necessary to ultimately achieve the settlement figure. In my opinion that is what
the relevant statutory provisions and the jurisprudence of the court require.
While the comparator case of McGrath did not involve acquired brain injury and the added
difficulties attendant thereto, the range of expert witnesses was not too dissimilar to the instant
case. The monetary value of a case must be taken into account but the principal factor, in my
view, is the extent of the work. I find the comparator to be of some assistance.
I do not think I should attempt to assess the instructions fee in this case by reference to the
time estimated by either party. No proper basis has been laid upon which I can carry out even
a rough test based on time input.
In my opinion, based upon my examination of the solicitor’s file and papers, including the
experts’ reports, the four days spent in court and having regard to the submissions of the
respective parties’ representatives the appropriate fee is €150,000. I take into account that the
comparator case was settled at a time of comparative prosperity and that in assessing the work
and the magnitude of the case it is reasonable to take into account the current economic
downturn as has been adverted to in a number of recent decisions and not so recent viz. Dunne
v O’Neill [1974] IR 180 . Accordingly, in my view, the sum allowed takes fully into account the
work undertaken and the magnitude of this case.
Brief Fees.
It appears to me that Senior Counsel’s brief fee which is marked at €65,000 may not be based
on the nature and extent of the work but rather on the fact that in reality two Senior Counsel
were briefed and a pooling / sharing
arrangement undoubtedly exists whereby the brief
fees of all Counsel are divided in agreed proportions between them.
I can only assess the fee on the basis of work carried out by the Senior Counsel identified in the
bill of costs to whom the Plaintiff through his solicitor has a liability.
Bearing in mind the relevant matters alluded to in the letter from Counsel I assess the
appropriate brief fee, having regard to the extent of the documentation in the brief, the overall
magnitude of the case and the importance thereof not only to the Plaintiff but also to the
Defendant at €40,000. Having regard to the matters referred to in Junior Counsel’s letter I
assess the appropriate fee in this respect as between party and party at €22,500.00.
Ms. Noreen Roche, Nursing Consultant.
Two issues arise in relation to this account:
(i)
Whether the hourly rate at €290 can be allowed in full as between party and party; and
(ii)
Whether the standby fees which are claimed at €600 per day are similarly allowable.
My function is not to decide whether Ms. Roche’s hourly rate represents a reasonable sum which
she may charge to her clients but rather whether, having regard to the nature and extent of the
work undertaken by her the rate is one which may be reasonably recouped by the Plaintiff on
the party and party basis.
It is well settled that an award of party and party costs does not afford the successful party full
indemnity for all costs incurred. A party cannot indulge in excessive payment and expect
recoupment from the paying party. The minimum costs which could have been incurred are
required to be determined.
Of the three comparator accounts which were put to Ms. Roche it appears to me that the
services provided by Carmoney Care Consultancy Ltd. are comparable with the service which
Ms. Roche provided in this case. Ms. Roche accepted that the Carmoney personnel are
acceptable experts in this jurisdiction and I am aware from my own experience that they are
frequently retained by solicitors in this jurisdiction to provide expert evidence to the court of the
type which arose in this case. Although their place of business is in Northern Ireland their
invoices for services rendered in this jurisdiction appear to be expressed in the Euro currency.
The hourly rate for their services is charged at €155.
Ms. Roche gave evidence that her hourly rate at €290 is justified by reason of the nature of her
qualifications and instanced that in this case her qualifications as a safety expert were in fact
relevant whereas a separate expert’s report would otherwise have been required.
It appears to me that it is this expert’s practice to levy a flat rate of €290 per hour for her
services no matter what element of her expertise is relevant to a particular report. If additional
work, over and above the norm is required in any particular case it should be possible to
identify such work and specify a separate charge in respect of it.
In my view it has been established that the services provided by this expert could have been
sourced at a lower cost than is claimed. Accordingly, the allowable hourly rate, as between
party and party should not exceed €155.00. I leave it to the respective legal costs accountants
to calculate the resultant allowance.
Standby fees, which involve the witness placing herself in readiness to attend court but while
remaining in her practice, are put at €600 per diem. However it seems that a daily allowance of
€450 would be acceptable as this is the sum which has previously been allowed following the
witness having given evidence at other taxations.
Ms. Roche’s place of business is in Clonmel Co. Tipperary. When called to give evidence she
must travel to the court venue from there. In this instance the action was listed for hearing in
Dublin.
Firstly, I am not satisfied that it was necessary to place this witness on standby to attend court
on the first day on which the case was listed for hearing. The liability issue has been earlier
referred to and it seems to me that it was premature to incur standby costs at this stage. Other
witnesses on the quantum side were apparently informed that they would not be immediately
required for court and there is no reason why this witness could not have been so informed.
Secondly, even if required to attend court, it is reasonable, in this particular case, to assume
that the witness would have received adequate notice of the day on which she would be
required to attend. There would seem to be little reality to the concept of it being possible for a
witness travelling a lengthy distance to court, at a moment’s notice. The logistics of being so
available might well be insurmountable.
In my view the standby fee is intended to provide a reasonable sum to take into account that
the expert witness may have to review the relevant report or file, on a daily basis, whilst
remaining in the office or practice environs. The distance which the witness is from the relevant
court is immaterial as all such witnesses should and do normally receive at least a day’s notice
in advance.
In my view an appropriate allowance is €200 per diem given that the witness is at large to
conduct other work also. I am not aware of the criteria apparently applied at a previous
taxation when an allowance of €450 was made. I cannot see any reasonable basis for such an
allowance.
In this case Ms. Roche’s evidence is that she does not conduct assessments on the days on
which she is on standby. There is no reason why assessments could not take place on days on
which the solicitor is advised that her evidence will definitely not be required. The first day on
which this action was listed for trial is a case in point and indeed it became apparent that the
second and also the third day were in the same category. This case was never actually opened
to the court (apart from the ex parte application to rule the settlement).
On this basis it seems to me that no standby fees are payable and I note that similar
disallowances have been made in relation to the medical experts’ fees.
Simon Hoe, Architect.
Architect’s fees which amounted to circa €16,000 were claimed as part of the Plaintiff’s Special
Damages. These fees related to the cost of design of the accommodation already referred to.
The Architect’s evidence to me is that over and above such design fees, further design related
fees arose for the purpose of preparation of his report for the court. As I heard no other
evidence relating to this account I accept Mr. Hoe’s evidence and accordingly there is no basis
upon which I can interfere with this witness’ amended account.
Note: the claim was voluntarily reduced to take into account submissions made during the
taxation as to the limited scope of the allowable fees. Further, a claim to entitlement to standby
fees was withdrawn.
Postage, Telephone Calls and Sundry Outlays.
This is charged at item 189 of the bill at €5,000. This claim was reduced to €2,000 during the
course of the hearing.
I have considered the entire file and will allow €1,200 under this heading. This sum is adequate
by way of contribution to such overhead expenses.
Dated the 31st day of July 2012
Declan O’Neill
Taxing Master.