[2012] IELCA 13
THE HIGH COURT
2011 NO. 5490 P
BETWEEN
KEVIN REYNOLDS
PLAINTIFF
AND
RADIO TELEFIS EIREANN
DEFENDANT
RULING ON INSTRUCTIONS FEE AND BRIEF FEES.
In this action the plaintiff, a Catholic priest and a member of the Missionary Society of Mill Hill
Missionaries, claimed damages for defamation including aggravated and punitive damages
against the defendant arising out of its broadcast on or about 23 May 2011 of a ‘Prime Time
Investigates’ programme entitled ‘Mission to Prey’ and a subsequent broadcast on a ‘Morning
Ireland’ programme.
It was the plaintiff’s claim that the defendant falsely and maliciously published allegations
concerning him which were scandalous and wholly without justification. It was asserted in the
broadcasts that the plaintiff while a missionary priest in Kenya raped a girl identified as
Venerenda who was under age and imposed himself upon her and had sexual intercourse with
her at a time when she was a maid in a house which the plaintiff frequented. It was alleged
that the plaintiff had fathered a child, Sheila, by her in or about 1982. It was alleged that the
plaintiff prevailed upon the alleged victim to remain silent about the alleged sexual contact and
to conceal his alleged involvement in the conception of the child. It was further alleged that the
plaintiff paid for the education of the said child.
The action was settled on the first day of the trial. An apology was read out in open court in
which the defendant, inter alia, accepted that the allegations which it had aired against the
plaintiff were entirely false, without foundation and should never have been broadcast. Very
substantial damages were paid to the plaintiff. Unusually, a statement by way of apology was
read in Court by the plaintiff’s own senior counsel. In addition the Court issued, on the consent
of the parties, a formal Correction Order.
The Order of 17 November 2011 as to costs states:
“By consent IT IS ORDERED that the Plaintiff’s costs including any reserved costs and any costs
of discovery herein be taxed and that the Defendant do pay the said costs when taxed and
ascertained and that the action be struck out of the list.”
The plaintiff’s bill of costs was listed for taxation before me on 22 March 2012, the plaintiff
being represented by his solicitor Mr. Robert Dore and by Mr. William Brennan, Legal Costs
Accountant. The defendant being represented by Ms. Patricia Harrington, Solicitor and Mr. Paul
Conlon, Legal Costs Accountant. All items save those relating to the brief fees of counsel and
the instructions fee were taxed on that date and, having heard the submissions of the parties in
relation to the outstanding items, I reserved my ruling thereon.
The taxation was lengthy, during the course of which the pleadings and other relevant
documentation were discussed at some length. Prior to the taxation I had received copies of
the plaintiff’s solicitor’s correspondence file, a book of pleadings and other documentation. In
addition, subsequent to the taxation I received for perusal, further papers which were stated to
comprise the brief for junior counsel. I have now carefully considered the documentation in
conjunction with the submissions of the parties.
Initially, Mr. Conlon raised a preliminary issue concerning the extent of the indemnity in respect
of the plaintiff’s solicitor’s professional fees to which the defendant could be held liable, having
regard to the amount quoted in the plaintiff’s solicitor’s bill of costs dated 8 December 2011.
The sum quoted was €60,000 plus VAT and it was asserted that this figure represents the
maximum sum by way of solicitor’s professional fee, to which the defendant could be held liable
as between party and party. This was strongly disputed on the basis that the sum quoted was
intended to be no more than a payment on account pending the outcome of the taxation of the
party and party costs.
Having considered the letter of 8 December 2011 which accompanied the plaintiff’s said bill of
costs I ruled against the defendant. The letter is in the following terms:
“Dear Kevin
Our telephone conversation of even date refers and as discussed herewith my fee note in part
payment of whatever fees are ultimately due.
I look forward to receipt of payment and we can revisit the matter after the taxation or
settlement of party and party costs.”
It seemed to me evident from the contents of this letter that the plaintiff’s solicitor had merely
sought a payment on account of professional fees and in the circumstances it would be unjust to
impose the limitation sought on behalf of the defendant.
At commencement of the taxation and by way of brief introduction Mr. Brennan provided some
background information and referred to the case as “one of the most serious defamations in
recent years.” The plaintiff had initially instructed Fair & Murtagh Solicitors on or about 11 April
2011 prior to the defendant’s broadcast and I was also referred to a list of consultations which
the plaintiff’s current solicitor had prepared commencing with the initial meeting with the
intended plaintiff on 16 June 2011. I will return to this later.
At the conclusion of the taxation hearing on 22 March 2012 I requested that the plaintiff’s
solicitor’s original correspondence file be made available to me for consideration. By letter
dated 13 April 2012 the plaintiff’s solicitor informed me that the original file “was effectively
dismantled in the context of preparing briefs for counsel but the books of documentation that
have been furnished to you constitute a replica of my entire file”.
It is difficult to understand why the solicitor’s correspondence file should have been dismantled
to facilitate preparation of the brief. This is highly unusual in my experience.
On the basis of the solicitor’s letter of 13 April 2011 the following books of documents appear to
constitute the entire file:
1.
Untitled and unindexed book of documents (Vol. 1) comprising copy emails, draft
pleadings, draft and copy inter-partes and other correspondence [Pages 1 to 323].
2.
Further untitled and unindexed book (Vol. 2) comprising emails, correspondence,
statements of plaintiff, draft apologies, draft statement for the Court and draft
Correction Order. [pages 324 – 504]
3.
Book of pleadings including Orders and documentation relating to interlocutory
applications.
4.
Book of inter-partes correspondence.
5.
Untitled book comprising 6 parts:
I. Statement of claim;
II. Defence and reply;
III. Pre broadcast inter-partes correspondence;
IV. Post broadcast inter-partes correspondence;
V. Transcript of plaintiff’s draft apology;
VI. Transcript of defendant’s statement.
6.
Book of landline outgoing calls.
7.
Book of landline incoming calls.
I have also received a box containing documents with the notation “Papers returned by Ms.
Miriam Reilly BL” which I understood to contain one complete copy of the brief for counsel and
comprising:
1)
A folder which seems to constitute part of the plaintiff’s solicitor’s original
correspondence file together with counsel’s own correspondence , research etc. [Green
folder]
2)
There is also a separate Blue folder of drafts relating to the statement to be read out in
Court and the Correction Order.
3)
Book of pleadings.
4)
Book of inter partes correspondence 17 June 2011 to 19 October 2011.
5)
Book of inter partes correspondence 17 June 2011 to 10 November 2011.
6)
Untitled book comprising 6 parts (i) to (vi), as above.
7)
Bundle of documents comprising case law, copy correspondence, handwritten notes;
drafts etc.
In light of the submissions on behalf of the respective parties, to which I refer later, and given
the unusual manner in which the solicitor’s file has been presented to me, together with the
plaintiff’s solicitor’s confirmation that he did not take or subsequently prepare any attendance
notes of meetings had with client or counsel, I think it necessary to set out, in chronological
order, the contents of Vols. (1) and (2) being the untitled books already referred to. These
Volumes appear to constitute the principal elements of the solicitor’s file and provide a guide to
the professional work being undertaken at the various stages of the matter. For the sake of
completeness I also set out the correspondence which emanated from Fair & Murtagh,
Solicitors, which firm had initially acted on behalf of the plaintiff.
SCHEDULE OF CORRESPONDENCE
A.
1.
Fair & Murtagh, Solicitors (FM)
Letter 11 May 2011 FM to RTE with denials on behalf of client and asserting the
inevitability of defamation proceedings if the broadcast is made.
2.
Email 18 May 2011 Aoife Kavanagh (AK) of RTE to FM confirming intention to broadcast
and raising further questions for Fr. Reynolds [see also 4th schedule to Statement of
Claim].
3.
Letter (undated) FM to AK: strongly reiterating client’s denials, enclosing Bishop
Sulumeti’s (BS) letter of reference etc.
4.
Copy BS letter 14 October 2003.
5.
Email 26 May 2011 AK to FM: asserting that ‘Prime Time’ could stand over each and
every allegation etc.
6.
B.
1.
Copy email 20 May 2011 AK to BS and replying email BS to AK of same date.
Dore & Company (‘Dore’)
Email 16 June 2011:
Fr. Kevin Reynolds (KR) to Dore attaching response from RTE to request for copy
‘Morning Ireland’ transcript.
2.
Email 22 June 2011:
Dore to Frank Callanan S.C. (FC) attaching draft letter proposed to be sent to RTE.
3.
Similar draft letter to KR for approval and response thereto.
4.
Copy ‘Morning Ireland’ transcript.
5.
Further copy of same transcript.
6.
Email Dore to FC 22 June 2011:
With copy of above transcript.
7.
Email 22 June 2011:
FC to Dore with two attachments (a) letter advices and (b) amended draft letter to
RTE.
8.
June 22 2011:
Email Dore to KR with draft letter as amended by FC.
9.
Email: KR to Dore with suggested further amendment to draft letter.
10.
Email 23 June 2011:
Miriam Reilly B.L. (MR) to Dore with further suggested amendments to draft letter and
advices and further email same date confirming statement of claim had been drafted.
11.
Email 24 June 2011:
MR to Dore attaching draft statement of claim with covering letter (also emailed to FC).
12.
Email 27 June 2011:
Dore to FC with copy email 26 June received from KR enclosing (a) Email AF (RTE) to
BS 20 May 2011 and (b) reply from BS to AK 20 May 2011.
13.
Email 27 June 2011:
KR to Dore as to arrangements for downloading the pre-broadcast advertisements.
14.
Email 27 June 2011:
MR to solicitor and FC - attached transcript of ‘Morning Ireland’ of 24 May 2011.
15.
Email 27 June 2011:
MR to Dore and FC with list of Stations which broadcast the programme and responding
email of same date from solicitor attaching list of broadcasts/programmes (11 in
number).
16.
Email 27 June 2011:
Dore to FC attaching copy letter of 23 June 2011 Dore to RTE (this is the final letter
emerging from the drafts referred to above).
17.
Further attachment to above email with copy letter Dore to RTE acknowledging
appearance and requesting urgent response to letter of 23 June and pressing for
defence.
18.
Email 27 June 2011:
KR to Dore with further instructions concerning the correspondence between RTE and
BS.
19.
Email 27 June 2011: KR to Dore.
20.
Email 28 June 2011:
FC to solicitor and MR with settled draft statement of claim.
21.
Email 28 June 2011:
Dore to KR attaching settled draft statement of claim.
22.
Email 30 June 2011:
FC to Dore attaching draft letter to be sent to RTE expressing astonishment at the
failure of the Station to broadcast a retraction; pressing for paternity test; requesting
identity of the “very credible third party source”, alleged in AK’s email to FM Solicitors
of 18 May 2011; pressing for defence.
23.
Email 30 June 2011:
MR to Dore and FC attaching draft grounding affidavit for relief pursuant to Order 122
Rule 7 of Rules of the Superior Courts.
24.
Email 30 June 2011:
MR to Dore attaching draft grounding affidavit for short service.
25.
Email 30 June 2011:
MR to Dore attaching draft notice of motion.
26.
Email 30 June 2011:
KR to Dore with further instructions and draft letter proposed to be sent by KR to his
Superiors outlining the position.
27.
Email 1 July 2011:
MR attaching draft letter for consideration.
28.
Email 1 July 2011:
MR to Dore attaching draft letter as settled.
29.
Further email 1 July 2011:
MR to Dore with additional amendments to draft letter as suggested by FC.
30.
Email 1 July 2011: RTE to Dore.
31.
Email 2 July 2011: KR to Dore.
32.
Email 4 July 2011:
Dore to FC with draft letter proposed to be sent to RTE.
33.
Email 5 July 2011:
Dore to MR and FC with amended draft notice of motion (Order 122 Rule 7) and draft
affidavit for short service.
34.
Email 7 July 2011:
Dore to MR with copy letter of same date to RTE as to listing of application on the
following morning and emphasising the extreme urgency.
35.
Email 7 July 2011:
Dore to RTE as to date and time for hearing of motion.
36.
Email 7 July 2011: Dore to MR as to time for hearing of motion.
37.
Email 7 July 2011:
Dore to FC with 3 attachments namely letter of 7 July 2011 from RTE attaching notice
for particulars, letter from RTE and cover sheet.
38.
Email 7 July 2011:
Dore to FC attaching letter of 7 July 2011 from RTE (re paternity test arrangements).
39.
Email 8 July 2011: KR to Dore with further instructions.
40.
Email 8 July 2011:
To FC with draft replies to defendant’s notice for particulars for settlement.
41.
Document entitled “Memo of judgement of 9 July 2011” [re motion for judgement in
default defence].
42.
Email 11 July 2011:
Dore to FC with draft letter to RTE (re paternity test issues).
43.
Email 11 July 2011:
Dore to Ormond Quay Paternity Services attaching DNA profiling request with
confirmation that RTE had agreed to bear all costs.
44.
Email 11 July 2011:
FC to Dore and MR attaching draft letter to RTE as settled.
45.
Email 11 July 2011:
FC to Dore and MR with a covering letter re amended draft letter.
46.
Email 15 July 2011: Dore to FC with attached letter from RTE.
47.
15 July 2011: Notice for further and better particulars of same date.
48.
Email 18 July 2011:
KR to Dore with attached document setting out the affect of the broadcast outlined and
his current feelings.
49.
Email 18 July 2011:
Dore to FC with attached draft replies to notice for further and better particulars (also
sent to MR).
50.
Email 18 July 2011:
Dore to FC with attached draft letter to RTE (as to paternity test issues and replies to
particulars).
51.
19 July 2011:
MR to Dore and FC attaching amended draft replies to particulars with advices.
52.
Email 19 July 2011:
FC to Dore with attached draft letter re paternity issues.
53.
Email 22 July 2011:
Dore to FC with attached letter from RTE re paternity test issues.
54.
Email 26 July 2011:
FC to Dore with attached draft letter to RTE re paternity test issues.
55.
Email 28 July 2011:
Dore to FC forwarding message received from KR concerning information received that
Sheila, the alleged daughter, had written to Superior General saying that KR was not
her father.
56.
Email 29 July 2011:
Dore to FC with attached draft letter concerning paternity test issues and delays.
57.
Email 29 July 2011: FC to Dore with amended draft letter.
58.
Email 2 August 2011:
KR to Dore with attached correspondence.
59.
Email 3 August 2011:
Client to Dore with attached further instructions concerning “fallout” from broadcast and
ongoing personal damage.
60.
Email 3 August 2011:
Dore to FC and MR with attached draft letter to RTE of 3 August 2011 and RTE’s letter of
same date.
61.
Email 4 August 2011:
MR to Dore with attached draft letter (email also refers to consultation of 3 August 2011
– no attendance note on file).
62.
Email 4 August 2011:
FC to Dore referring to solicitor’s modus operandi.
63.
Email 19 September 2011:
FC to Dore attaching approved draft letter; together with attachment of draft letter to
RTE solicitor as to paternity test issues and enclosing handwritten letter 11 July 2011
from Sheila Mudi to Mill Hill Missionaries in Nairobi with explanation that the letter had
been authenticated by Fr. Patrick T. Ryan and claim that the letter further established
that the defamation was without foundation.
64.
Email 8 August 2011: KR to Dore with attached instructions.
65.
Email 8 August 2011:
Dore to FC and MR with attached draft letter to RTE solicitor seeking urgent response to
letter of 4 August and also enclosing draft notice of motion for judgement in default of
defence to be issued.
66.
Email 8 August 2011:
FC to Dore with amendment of attached draft letter duly amended.
67.
Email 10 August 2011:
Dore to FC with attached letter of same date received from RTE solicitor.
68.
Email 12 August 2011:
FC to Dore with attached draft reply to RTE solicitor.
69.
Email 12 August 2011:
Dore to FC and MR with attached letter of 9 August 2011 Dore to RTE solicitor [this
letter seems to be misdated and should have been dated 12 August 2011].
70.
Email 17 August 2011:
KR to Dore with attached instructions under the heading ‘Buried Alive’.
71.
Email 24 August 2011:
Dore to FC and MR with attached copy letter to RTE solicitor and notice of motion for
judgement in default of defence returnable 21 September 2011.
72.
73.
Email 26 August 2011: KR to Dore.
Email 25 August 2011:
Dore to FC, MR and KR with attached letter 25 August 2011 to RTE solicitor again
complaining of delay in relation to paternity testing and the admission by Sheila Mudi
that the plaintiff is not her father and her refusal to undergo a paternity test; outlining
the position in some detail; the representations by the defendant’s S.C. to the Court on
8 July 2011 and further matters.
74.
Email 26 August 2011:
Dore to FC, KR and MR with attached letter of 26 August 2011 received from RTE
solicitor confirming that DNA test had been completed and had been forwarded for lab
assessment.
75.
Email 29 August 2011: KR to Dore with instructions.
76
Email 2 September 2011:
KR to Dore with instructions re Irish Times publication 30 August 2011.
77.
Email 4 September 2011:
KR to Dore with attached memorandum concerning meeting with Fr. P.T. Ryan on 4
September 2011.
78.
Email 6 September 2011:
Dore to FC and MR with attached draft letter to RTE solicitor (concerning contact by
Kevin Keane, journalist with the plaintiff advising him of the result of the paternity test)
and KR’s and Dore’s shock etc. at the leaking thereof even before the client had been
advised of the negative result.
79.
Email 6 September 2011:
Dore to FC and MR with attached responding letter from RTE solicitor and a re-test
being suggested.
80.
Email 7 September 2011:
Ormond Quay Paternity Services to Dore with attached letter concerning unsatisfactory
procedures surrounding the testing in Nairobi and recommending re-test in Nairobi only.
81.
Email 9 September 2011:
KR to Dore with instructions as to the congratulatory messages received by him: the
underlying allegation of statutory rape against him; the necessity for a retraction etc.
82.
Email 10 September 2011:
KR to Dore with attached instructions concerning the alleged rape a
83.
spect.
Email 12 September 2011:
KR to Dore with attached instructions concerning “the impact of this libel on my life”.
84.
Email 13 September 2011:
KR to Dore outlining contact information for BS.
85.
Email 13 September 2011:
KR to Dore referring to telephone call and questioning the assertion that Sheila Mudi
was not in possession of her identity card at the relevant time as Kenyan law required a
citizen to be in possession of such at all times.
86.
Email 13 September 2011: KR to Dore (repeat of above).
87.
Email 15 September 2011:
Dore to FC and MR with attached draft affidavit of Robert Dore setting out the facts to
date and grounding application for judgement in default of defence.
88.
Email 15 September 2011:
Dore to FC and MR with attached draft letter to RTE solicitor noting failure of the
defendant to formally and publicly acknowledge the result of the test and emphasising
the damage being caused by continuing delay.
89.
Email 15 September 2011:
FC to Dore with amended draft affidavit.
90.
Email 16 September 2011:
FC to Dore with attached amended draft letter to RTE solicitor.
91.
Email 19 September 2011:
Dore to FC and MR with attached draft letter to RTE solicitor for approval.
92.
Email 19 September 2011:
FC to Dore with attached approved draft letter as amended.
93.
Email 19 September 2011:
Dore to FC and MR with attached draft letter (concerning second sample taken from
Sheila Mudi), for approval.
94.
Email 21 September 2011:
Dore to FC and MR with attached letter 20 September 2011 from RTE solicitor and
affidavit of Anne McManus Solicitor (replying to affidavit grounding application for
judgement); together with exhibits thereto (one of which was letter from DNA testing
agency confirming second negative result).
95.
Email 21 September 2011:
FC to Dore with attached chronology of events.
96.
Email 28 September 2011:
MR to Dore with attached letter for setting down the action for trial.
97.
Email 29 September 2011:
Dore to FC and MR with attached letter from RTE solicitor by way of apology to KR and
suggestion that the statements were made at the time in good faith, together with offer
to publish an apology in the form, content and manner agreeable to the plaintiff.
98.
Email 26 September 2011:
KR to Dore, forwarding email received from Rev. T. and with attached letter from Mrs.
LW, Kenya.
99.
Email 26 September 2011:
KR to Dore with client’s response to Rev. T. and responding to letter which was clearly
unreliable and utterly untrue.
100.
Email 29 September 2011:
FC to Dore with attached draft letter to RTE in reference to the apology received.
VOLUME 2.
101.
Email 29 September 2011: KR to Dore with instructions.
102.
Email 29 September 2011:
Dore to FC and MR with attached draft apology marked “For discussion purposes only”.
103.
Email 29 September 2011:
Dore to FC and MR with attached letter from RTE solicitor as to the defendant’s intention
to give evidence at the trial that it had offered an apology to the plaintiff and in that
regard would rely on its letter of 28 September 2011.
104.
Email 29 September 2011:
Dore to FC and MR with attached letter enclosing defence and notice of payment into
court of a sum proposed to satisfy the plaintiff’s claim.
105.
Email 30 September 2011:
FC to Dore attaching letter of advices and “re worked” draft apology.
106.
Email 30 September 2011:
FC to Dore with attached draft reply to defence and covering letter with the comment
“the only issue is whether we felt that discovery was necessary to deal with the
“Reynolds” defence pleaded at paragraphs 8 and 9. I am not sure that it is but it is
something we need to consider.”
107.
Email 30 September 2011:
Dore to FC and MR with KR’s comments on draft apology.
108.
Email 3 October 2011:
Dore to FC and MR with attached amended apology.
109.
Email 3 October 2011:
Dore to FC with attached draft letter to RTE solicitor intended to accompany a proposed
apology.
110.
Email 5 October 2011:
Dore to FC and MR with attached letter of 5 October received from RTE solicitor
accompanied by amended version of apology and proposed to be read out on Thursday
6 October 2011 at 9.30 p.m. to be repeated the following morning on ‘Morning Ireland’
programme.
111.
Email 5 October 2011:
Dore to FC and KR attaching draft letter proposed to be sent to RTE solicitor in response
to suggested apology.
112.
Email 5 October 2011: Dore to KR with attached draft letter.
113.
Email 6 October 2011:
Dore to FC and KR with attached letter of same date received from RTE agreeing to
insertion of additional paragraph and attaching finalised apology to be published.
114.
Email 7 October 2011:
Dore to FC and MR with attached draft statement of KR “for discussion purposes only”.
115.
Email 7 October 2011:
FC to Dore with amended draft statement of KR.
116.
Email 14 October 2011:
FC to Dore with attached preliminary advice on proofs.
The advice on proofs was accompanied by an updated chronology of events.
117.
Copy letter 30 September 2011:
RTE solicitor to Dore that plaintiff’s request for discovery be made in a manner pursuant
to Rules of the Superior Courts.
118.
Copy letter 30 September 2011:
Dore to RTE solicitor requesting tape of the entirety of the interview of 7 May 2011 with
Fr. Reynolds.
119.
Draft letter 17 October 2011:
Dore to RTE solicitor in reference to senior counsel’s advice on proofs to the effect that
it would be necessary to provide facilities in court for the broadcasting of certain
material and further that information as to the occasions on which pre-advertisements
of the broadcast were made should be available to the jury.
120.
Draft letter 17 October 2011:
Dore to RTE solicitor that previous letter of 30 September 2011 could not be construed
as a request for discovery and the response was example of “utterly uncooperative
attitude adopted by your client from the outset”.
121.
Email 18 October 2011:
FC to Dore attaching above mentioned draft letters duly settled.
122.
Email 26 October 2011:
MR to Dore, FC and Jack Fitzgerald (JF), Senior Counsel, advising re viewership of the
apology on 6 October 2011 and attaching information received from Ronan O’Loughlin
of Digitize (Digital Media Solutions).
123.
Email 27 October 2011:
Dore to FC and MR attaching letter of advices of 26 October 2011 received from JF
(letter refers to consultation held on the previous day).
124.
Email 27 October 2011:
Dore to MR attaching copy senior counsel’s advice on proofs.
125.
Email 27 October 2011:
MR to Dore and FC attaching explanatory letter of same date together with draft letter
to RTE in relation to viewership/listenership numbers and publication over the internet.
Counsel also makes reference to consultation on 25 October 2011.
126.
Email 28 October 2011:
Dore to FC and MR attaching letter to RTE of same date (as drafted by MR).
127.
Email 28 October 2011:
Dore to FC and MR attaching two draft letters intended for RTE solicitor, (a) as to
practical arrangements for broadcast facilities in Court etc. and (b) concerning the
uplifting of 7 minute excerpt of the broadcast programme referable to KR, to YouTube
and requesting its removal.
128.
Email 1 November 2011:
Dore to FC and MR with attached letter of 1 November 2011 from RTE solicitor.
129.
Email 1 November 2011:
JF to Dore and counsel attaching draft document (statement and settlement terms) –
for consideration as to using in Court (by consent).
130.
Email 3 November 2011: MR to Dore (attachment missing).
131.
Email 3 November 2011:
Dore to FC and MR with attached précis of evidence prepared by plaintiff.
132.
Email 3 November 2011:
JF to Dore and counsel acknowledging receipt of plaintiff’s settlement and providing
brief advices.
133.
Email 3 November 2011:
Dore to all counsel attaching letter of same date from RTE solicitor outlining, inter alia,
the nature and extent of the documentation which the defendant would provide to the
plaintiff.
134.
Email 4 November 2011:
Dore to all counsel attaching draft responding letter to RTE solicitor.
135.
Email 4 November 2011:
JF to Dore with proposed alternative draft letter by way of response to RTE solicitor.
136.
Email 4 November 2011: MR to Dore – no suggestions on draft letter.
137.
Email 4 November 2011: JF to Dore (repeat of email of same date).
138.
Email 4 November 2011:
JF to Dore – further consideration of responding letter and proposed amendments.
139.
Email 4 November 2011:
MR to Dore and all counsel attaching her research into libel awards and settlements.
140.
Email 10 November 2011:
Dore to all counsel attaching RTE solicitor’s letter of same date.
141.
Email 10 November 2011:
Dore to all counsel by way of forwarding copy email received from KR in advance of
consultation arranged for 3.45 p.m. that day – outlines KR’s current feelings “in a good
place” etc. and matters which are unsettling him.
142.
Email 11 November 2011:
JF to Dore attaching first draft of proposed Correction Order.
143.
Email 11 November 2011:
Dore to JF and other counsel with suggested amendment to Correction Order.
144.
Email 11 November 2011:
JF to Dore with further draft Correction Order as of 2.59 on 11 November 2011.
145.
Email 14 November 2011:
Dore to all counsel with attached letter of same date from RTE solicitor enclosing,
information concerning broadcast and dvd of promotions of broadcasts together with
transcripts and information concerning listenership and viewership.
146.
Email 14 November 2011:
Dore to all counsel forwarding message received from Marcus Stewart, Producer of
Earth Horizon Productions Limited in reference to dvds for broadcast in Court and the
editing of the original RTE interview with Fr. Reynolds.
147.
Email 14 November 2011:
Dore to all counsel forwarding further email from Marcus Stewart.
148.
Email 14 November 2011:
MR to Dore and other counsel attaching (a) draft statement to be read in Court and
(noted at conclusion thereof as having been settled by “Jack and Miriam 4.00 p.m.”;
and (b) covering letter.
149.
Email 14 November 2011:
Dore to all counsel attaching document entitled ‘Mission to Prey’ promotional
advertisements.
In addition to the foregoing the plaintiff’s solicitor also prepared a document entitled
“Date of consultations” as follows:
Dates
Reference
16 June 2011
Meeting with Fr. Sean McDonagh of the Association of Catholic
Priests with plaintiff.
Duration: 2 hours
Considered correspondence between FM and RTE and memos
and statements compiled by plaintiff.
Agreed to act and retain FC who had already agreed to act for
members of the Association and MR.
17 June 2011
Meeting with plaintiff
Duration: 2 hours
Drafted letter to FM.
20 June 2011
Meeting with FC to view the ‘Mission to Prey’ programme.
Duration: 1.5 hours.
21 June 2011
Meeting with plaintiff, FC and MR
Duration: 1.5 hours.
1 July 2011
Meeting with plaintiff.
Duration: 1 hour.
11 July 2011
Meeting with plaintiff re paternity test.
Duration: 0.5 hour.
14 July 2011
Meeting with plaintiff after paternity test taken when reimbursed
the plaintiff the cost of his sample being taken in the sum of
€50.
Duration: 0.5 hour.
3 August 2011
Meeting with counsel.
Duration 1 hour.
2 September 2011
Meeting with plaintiff.
Duration: 1 hour.
6 September 2011
Meeting with plaintiff
Duration: 1 hour.
Dates
Reference
12 September 2011
Meeting with plaintiff
Duration: 1 hour.
29 September 2011
Meeting with plaintiff and counsel to discuss draft apology.
Duration: 1.5 hours.
9 October 2011
Meeting with plaintiff at Ahascragh reinstatement Mass.
Travel to and from Ahascragh,.
Duration: 6 hours.
25 October 2011
Meeting with JF and MR – pretrial consultation with plaintiff in
attendance.
Duration: 2 hours.
7 November 2011
Meeting with counsel and video expert Marcus Stewart.
Duration: 1.5 hours.
8 November 2011
Meeting with video expert Marcus Stewart to view edited dvd.
Duration: 2 hours.
10 November 2011
Meeting with JF, FC, and MR pre trial consultation with plaintiff
in attendance.
Duration: 2.5 hours.
15 November 2011
Meeting with plaintiff – 08.15 a.m.
Meeting with counsel and plaintiff – 9.15 a.m.
Various consultation with all witnesses – 2.5 hours.
At Four Courts until 4.30 p.m.
16 November 2011
At Four Courts until 2.30 p.m.
Drafting settlement documentation with counsel
17 November 2011
Extensive consultations all morning and settlement negotiations.
Jury sworn in – submissions made.
Case settled and apology and Correction Order read in open
Court in early afternoon.
THE INSTRUCTIONS FEE.
PLAINTIFF’S SUBMISSIONS.
Mr. Brennan provided me with an outline of the plaintiff’s solicitor’s work. He stated that
initially Messrs. Fair & Murtagh Solicitors had been instructed by Fr. Reynolds in May 2011 and
that that firm had engaged in correspondence with RTE prior to Mr. Dore Solicitor taking
instructions on or about 16 June 2011. He emphasised that RTE had been “beseeched to stop
the broadcast” and following the broadcast efforts had been made by Mr. Dore, Solicitor to
obtain an apology and a retraction.
The plenary summons was issued on 17 June 2011 and served shortly thereafter. Reference
was made to the plaintiff’s solicitor’s letter to RTE of
23 June 2011 which reiterated the
plaintiff’s denial that he had ever fathered a child and that he was the father of Sheila and
indeed a denial that he had raped or had ever imposed himself or had sexual intercourse with
Veneranda; the letter made it clear that the plaintiff was most anxious, as a matter of urgency,
to undergo a paternity test and proposals were set forth in this regard. The letter also
emphasised the extremely serious consequences of the defamation of the plaintiff by RTE and it
was in that context, “even at this late stage” that a retraction was sought; it was made clear
that in default, it was proposed to proceed to trial at the earliest opportunity with a view to
seeking to mitigate the damage to the pastoral and public character of the plaintiff; reference
was made to the fact that the statement of claim was then being settled by counsel.
Mr. Brennan referred to the plaintiff’s solicitor’s further letter of 27 June 2011 to the RTE
solicitor pressing for an appearance and for a response to the paternity test proposals. The
statement of claim was served by fax dated 29 June 2011 with a request for delivery of a
defence within ten days given “the devastating effect that the defamation of my client has had”.
The defendant’s solicitor was put on notice that an application would be made to the Court for
an Order abridging the time permitted for the delivery of the defence, in default of receipt of a
satisfactory response and it was noted that the paternity test issue had not yet been properly
addressed by RTE.
Reference was then made to the pleadings and to the notice of motion dated 5 July 2011
seeking, inter alia, an Order abridging time for service of the notice of motion and for filing of
the defence. The motion was grounded on the affidavit of Mr. Dore Solicitor and which
exhibited the pre and post proceedings correspondence with RTE and its solicitors. Two
applications arose, firstly the application to abridge time for service of the notice of motion
which was heard on 5 July 2011 and secondly the hearing of the application itself on 8 July
2011. This application was in fact refused but the costs thereof are allowable against the
defendant.
I was also referred to the defendant’s notice for particulars dated 8 July 2011 and the replies
thereto which, it was emphasised, were delivered within one day and same are also dated 8 July
2011. I was advised that Mr. Dore had spoken to the relevant personnel in relation to arranging
the paternity test following agreement from the defendant in regard to such arrangements.
Reference was also made to a notice for further and better particulars dated 15 July 2011 and
the replies thereto dated 20 July 2011.
Mr. Brennan asserted that at the date of hearing of the motion to abridge time for service of the
defence, counsel for the defendant had insisted that the defendant would be pleading
justification. This also appeared to be the defendant’s position per letter of 30 June 2011 in
which it was stated by the defendant’s solicitor that “my client is fully satisfied it can stand over
the allegations”. Mr. Brennan asserted that this statement had greatly affected the client. It
was suggested that notwithstanding that the defendant had indicated that there would be no
delay in relation to the paternity tests this had not proved to be the case and further that by
letter of 10 August 2011 the defendant appeared to be changing its position from one of
asserting that it could stand over the allegations to now saying that “the results of the paternity
test are the crucial issue in this matter”. It was emphasised that when subsequently the
paternity test proved negative, the defendant sought a second test or series of tests.
Mr. Dore Solicitor asserted that at this stage his client “was a social pariah”. He had been
obliged to stand down from his ministry. Mr. Dore wished to emphasise the responsibility
aspect attaching to him and that although the period of work was of relatively short duration
this does not mean that the fee should be reduced. The efficiency of prosecuting the action at
great speed should be reflected in the allowance by way of instructions fee. He stated that the
amount of time spent by his practice was enormous.
Discussion also took place with Mr. Dore concerning the lack of attendance notes on his file
which would serve to corroborate the extensive time which he asserted had been expended by
him in the case. It was acknowledged that the situation was not satisfactory in regard to
notation of work or attendances. However Mr. Dore insisted that he did expend a great deal of
time in the case and pointed to the fact that his letter of 25 August 2011 in which he was
pressing strongly for the arrangements to be completed in relation to the carrying out of the
first set of paternity tests, had in fact been dictated by him whilst he was on holiday in Spain.
The letter also made reference to the apparent situation that the defendant’s position in regard
to pleading justification appeared to have been fundamentally altered.
Emphasis was laid on the apparent leaking of the results of the paternity test to the media prior
to the plaintiff’s solicitor being informed. Mr. Dore said he had ascertained from a journalist
that the result of the test had proved negative. Further, emphasis was laid on the fact that the
negative result had not apparently altered the defendant’s attitude in that they were now
seeking a second paternity test. Following the result of the second test the defendant’s
solicitors wrote to the plaintiff’s solicitor in the following terms on 28 September 2011:
“I am instructed to advise that RTE wishes to apologise to Fr. Reynolds for the statements
complained of and to express its sincere apology to him for the undoubted damage which it has
done to his reputation. While the statements were made at the time in good faith, they have
obviously caused him great anguish since the broadcast.
RTE is willing to publish an apology to your client and would be obliged if you would specify the
form, content and manner of the apology which is agreeable to your client as soon as possible.”
This letter was replied to on the following day and in which the plaintiff’s solicitor questioned, in
no uncertain terms, the defendant’s assertion that the impugned statements were made at the
time, in good faith. By way of immediate letter of response on 29 September 2011 the
defendant’s solicitor stated:
“I am instructed to advise that it is RTE’s intention to give evidence at the trial of the case that
it offered an apology to the plaintiff in respect of the publication to which this action relates and
that it will rely in that regard on its letter dated 28 September 2011.”
Mr. Dore asserted that considerable work in fact went into drafting the apology and he accepted
that RTE were generous in their willingness to broadcast a fulsome apology. The defence is
dated 29 September 2011 and it was asserted that, notwithstanding the terms of the
defendant’s solicitor’s letter of 28 September 2011, the defence was, to all intents and
purposes, a full defence. I will return to this later. The defence was accompanied by a
substantial lodgement and Mr. Dore advised that he had consulted with his client and with
counsel and was concerned with the amount of the lodgement. His particular concern was that
there was no guiding precedent in that under the provisions of the 2009 Defamation Act the
Judge could direct a jury in relation to damages and therefore it was necessary to carefully
consider the realistic prospects of a jury awarding a sum in excess of the lodgement.
The plaintiff directed that the action should be set down for trial and pursued vigorously. With
this in mind Mr. Dore sought from the defendant a copy of the recording of the entire interview
had by the defendant’s representative with Fr. Reynolds on 7 May 2011. I was advised that
considerable work went into the drafting of the apology which it was intended should be read
out at the beginning of a ‘Prime Time’ programme on a date to be agreed. The terms of the
apology were furnished to the defendant’s solicitors by letter of 3 October 2011. On the same
date the plaintiff’s solicitor delivered what was termed a special reply to defence. In essence
the reply related to paragraphs 8 and 9 of the defence which alleged that the words published
constituted fair or reasonable publication or were a matter of public interest and had been
published on an occasion of qualified privileged. It was the plaintiff’s case that the words were
published maliciously and were not published on an occasion of qualified privilege and further
that the defence as published at paragraphs 8 and 9 amounted to an aggravation or
exacerbation of the defamation of the plaintiff.
An amended version of a proposed apology was submitted by the defendant’s solicitor on 5
October 2011 and which it was proposed would be broadcast at the beginning of the ‘Prime
Time’ programme scheduled for 6 October 2011 and on the following morning’s ‘Morning
Ireland’ programme on 7 October 2011. This apology as further amended by the plaintiff’s
solicitor was duly broadcast as agreed.
Mr. Brennan advised that compliance with senior counsel’s directions on proofs included the
necessity of consideration of the documentation to be presented to the jury (in this regard a
transcript of the ‘Prime Time’ programme had been prepared by a member of Mr. Dore’s staff);
in addition a DVD specialist was retained to provide advices and ultimately to give evidence as
to the manner in which the programme had been made. This was with a view to showing the
intention of the programme makers to link the plaintiff throughout the course of the broadcast
to the various allegations which had arisen in relation to other matters.
A further matter which required consideration was the suggestion by the defendant’s solicitor
that the plaintiff’s request for a copy of the entire interview with Fr. Reynolds should more
properly be sought by way of discovery. It was intimated that discovery was deliberately not
sought as this would have had the effect of delaying the hearing of the action.
Enquiries were also made concerning the number of times that the broadcast had been preadvertised, the number of viewers and indeed the extent of the internet viewership. It was
established that 529,000 people had viewed the programme on the night of its broadcast.
Two statements had been obtained from Fr. Reynolds and it was acknowledged that same had
in fact been prepared by Fr. Reynolds.
It was asserted that the brief for counsel was prepared on an ongoing basis with earlier books of
pleadings and correspondence which had been prepared for interlocutory applications being
added to. One day would have been required to put the ultimate brief in order.
Mr. Dore advised that he met with the six witnesses intended to give evidence and that this
took place on 15 November 2011 being the date fixed for hearing. The witnesses remained in
court for two days. In relation to the instructions fee generally Mr. Dore further advised that he
had been involved in two commercial cases in the recent past, particulars of which were not
furnished and in respect of one of which cases he had negotiated a fee in the order of €250,000
and in the other €180,000. He considered that both cases were less onerous than the instant
case.
Mr. Dore emphasised that this case occupied his time between mid-June and mid-November
2011 and that it pervaded his office.
He emphasised, that in conjunction with counsel, he reviewed the Correction Order as drafted
by senior counsel but acknowledged that he may not have had a huge amount of involvement in
the drafting of this Order as distinct from the original apology which had been drafted by him.
It was further argued that the extent of the damages in this case (the amount of which is
confidential but which I confirm is very substantial) should go to the responsibility factor.
Mr. Brennan emphasised that the instructions fee is to be assessed by way of consideration of
all relevant factors. It is a composite fee as referred to by Murphy J. in Smyth v Tunney & Ors.
[1993] 1 IR 451.
Mr. Dore emphasised that a lot of thought had gone into the letters which he had written and he
stated that he “had spent an inordinate amount of time in getting the case over the line”.
DEFENDANT’S SUBMISSIONS.
Mr. Conlon referred to the lack of detail provided with regard to the extent of the work carried
out by the plaintiff’s solicitor. He pointed to the two page document entitled ’Date of
consultations’
1
which indicated approximately 48 hours involvement from date of receipt of
instructions, including court attendance time (exclusive of other work of preparation). He
asserted that the serious nature of the defamation had been emphasised repeatedly on behalf of
the plaintiff to the extent that it appeared that a penalty was being sought.
Mr. Conlon stated that little by way of explanation of actual work carried out by the plaintiff’s
solicitor had been provided - “we have been brought through the bill” - nothing more. He
referred to the fact that no attendance dockets had been produced. The file, he asserted,
consisted of two booklets as follows: (a) inter partes correspondence and (b) pleadings.
Further it was pointed out that Mr. Dore had not acted ab initio in this matter - Fair & Murtagh
had initially been instructed on 9 May 2011 and in fact the letters requesting that RTE should
not broadcast the material had come from Fair & Murtagh Solicitors which firm had acted for
some three and a half weeks thereafter up to 17 June 2011. The plaintiff’s former solicitor’s
professional fee amounted to €2,000 and this represents the full extent of the defendant’s
liability in costs up to 16/17 June 2011. Further, that the defendants were not obliged to pay
any additional costs for Mr. Dore’s work of reading himself into the file.
It was asserted on behalf of the defendant that there had been a very heavy reliance on counsel
given that all letters of note had been settled by counsel and he referred in particular to page
218 of the book of documents (Vol. 1) and the email of 4 August 2011 in which senior counsel
had complained about the solicitor’s modus operandi in the case. Mr. Conlon went through the
file in some detail, referring to various letters and drafts which he asserted indicated the limited
extent of the solicitor’s work and also made the point that there appeared to be repetition of
certain documents and correspondence in the books which had been furnished to him. He
asserted that it was clear that following receipt of the letter of apology from the defendant’s
solicitors, counsel had been engaged in preparing draft settlement terms and a statement to be
read out in court and this had been the subject of discussions between solicitor and counsel.
Further, that the plaintiff considered that his good name had been exonerated by reason of the
broadcast of the apology by RTE, prior to the date fixed for hearing. I was directed to the email
of 10 November 2011 from the plaintiff to Mr. Dore in which the plaintiff acknowledged that his
good name had been restored.
It was asserted that there had been extraordinarily heavy reliance on counsel in this case. It
was clear that counsel were consulted throughout. He found it difficult to see how or in what
manner the involvement of the plaintiff’s solicitor in the case could justify the instructions fee
which was being sought at €275,000, even taking into account the intangible factors referred to
at Order 99 Rule 37 (22) (ii) of the Rules of the Superior Courts.
Further, that the primary
obligation on the Taxing Master is that of ascertaining the nature and extent of the work of the
1
Reproduced at pp 25-27 hereof.
solicitor. Apart from the correspondence which had been referred to, the solicitor’s file was
relatively small and could not justify the fee.
In regard to the time expended on the matter it was argued that some information had been
provided concerning the extent of time expended at consultations but, on a party and party
basis, the costs of only two consultations had or should be allowed. The solicitor had attended
at the plaintiff’s reinstatement Mass and this could not be deemed necessary on a party and
party basis. As far as court attendances were concerned, in reality the time was limited. Mr.
Conlon argued that the instructions fee claimed in the bill could only be referable to a 20 week
period. No breakdown of the fee had been provided and that the fee does not stand up to
examination by reference to comparators. He suggested that the following breakdown in terms
of time spent would be reasonable to attribute to the case (with the exception of the flat fee of
€2,000 which is clearly attributable to the case for the period 9 May – 16 June 2011 when Fair &
Murtagh Solicitors were retained):
Work re issue and service of plenary summons
and statement of claim
10 hours
Motion to abridge time
3 hours
Replies to particulars
2 hours
Further replies to particulars
2 hours
Motion for judgement default of defence
3 hours
Attendance on plaintiff re issues and consideration
of lodgement
14 hours
Set down for trial and reply to defence
2 hours
Considering proofs and replying
2 hours
Preparation for trial
20 hours
Inter partes correspondence
10 hours
Attendance on plaintiff and advising at
various times and attendance on the witnesses
10 hours
This was stated to amount to 76 hours. I calculate it at 78 hours.
It was asserted that there are 52 hours recorded by the solicitor of which 12 were not allowable
(in relation to taking instructions on 16 June 2011 and 17 June 2011; some consultations with
counsel and attendance at the reinstatement Mass).
It was proposed that in addition to the 76 hours identified by Mr. Conlon, , a further 40 hours
for consultations should be provided bringing the total to 114 (sic) hours for the entirety of the
case. It was suggested that the maximum hourly rate applicable is €375 (per ESG Reinsurance
(Ireland) Ltd. (under Administration) [2010] IEHC 365) and accordingly the total fee should
amount to no more than €42,750 which, taken together with Fair & Murtagh’s involvement
would bring the total instructions fee up to €44,750. This proposed allowance it was stated,
also takes into account the importance of the matter and responsibility element and further that
this sum is in fact in line with the comparators which were produced, and to which I will refer
later. It was emphasised that in the instant case an apology had been given to the plaintiff
within three months of the date of receipt of the proceedings by the defendants.
By way of response, Mr. Dore referred firstly to the email which had been adverted to by Mr.
Conlon in which senior counsel had referred to the solicitor’s modus operandi and he explained
that this letter reflected his close professional relationship of many years with the senior counsel
concerned, that it had no bearing on the case and that Mr. Conlon had, in advance of the
taxation requested “every scrap of paper” and he was now being criticised for producing same.
Mr. Dore emphasised that his rationale throughout had been to keep up pressure on the
defendants so that this action could be disposed of as quickly as possible, in light of the
plaintiff’s circumstances. As to the solicitor’s attendance at the plaintiff’s reinstatement Mass, it
was intended that Mr. Dore would be available to answer any questions raised by the media as
the plaintiff did not wish to make a statement on such an occasion.
It was asserted that the defendant’s assessment of the instructions fee at no more than
€44,750 was ludicrous and amounted to a gross underestimation of value of his work and was
insulting.
Insofar as his involvement with counsel was concerned he confirmed that there was interplay
between counsel and solicitor but the solicitor had to be the driving force – “otherwise the case
would not have proceeded so quickly”. It was emphasised that the correspondence was from
the solicitor to counsel as he considered it his responsibility to keep counsel aware of all
correspondence which would ultimately be referred to the jury.
Mr. Dore stated that in fact a full defence had been filed on behalf of the defendants and that it
was nonsense to suggest that the letter from the plaintiff of 10 November 2011 (at page 473
Vol. 1) should be construed as indicating that the plaintiff was happy that his good name had
been restored.
Mr. Dore stated that he acts for the Association of Catholic Priests, that Fair & Murtagh Solicitors
had originally acted for the plaintiff and that he did have to consider the letters which had been
written by them given that his involvement came about after the impugned broadcast and
further that the hours spent in taking instructions should be allowable. It was claimed that all of
the meetings had with the client and with counsel were essential to the rapid progress of the
case.
It was asserted that the assessment of the appropriate instructions fee based on a valuation of
estimated hours was not appropriate. This was a novel and unique case and it should not be
compared with other cases. Further, that the direct result of a calculation based on estimated
hours would be to penalise a solicitor for conducting a case with speed. Reference was made to
the importance of the matter emphasising the statement which was read out in court and the
Correction Order.
Finally, Mr. Conlon by way of brief reply noted that the solicitor’s involvement in drafting of the
Correction Order was limited, as acknowledged by the solicitor. He asserted that the time
engaged in a case was a very important factor as adverted to by the Court in a number of
decisions and further that even if his estimate of the time was incorrect he could not envisage
how the level of fee claimed by the plaintiff could have been reasonably arrived at.
THE BRIEF FEES.
A great deal of discussion took place concerning the nature and extent of the work carried out
by counsel both prior to and subsequent to their receipt of the briefs. This discussion also, to a
significant extent, was of relevance to the professional work undertaken by the plaintiff’s
solicitor. Mr. Dore addressed me at some length in relation to both aspects. Subsequently, at
my request, Jack Fitzgerald S.C. who was present with junior counsel Miriam Reilly BL, also
addressed me and answered various queries raised by me and subsequently by Mr. Brennan
and Mr. Conlon. I did not require Mr. Fitzgerald to give sworn evidence to me as I did not
consider this to be necessary having ascertained that the defendants were happy to proceed on
this basis.
Three counsel were briefed on behalf of the plaintiff namely Frank Callanan, S.C., Jack
Fitzgerald S.C. and Miriam Reilly BL. All three counsel provided me with summaries outlining
the nature and extent of their work in the matter, in addition to their fee notes.
Mr. Dore and Mr. Brennan initially provided me with an overview of counsel’s involvement in the
action and reference was made to the list of consultations prepared by Mr. Dore, referred to
earlier herein.
Mr. Callanan and Ms. Reilly had been retained from the beginning namely as of 16 June 2011.
There was an initial conference with senior counsel on 20 June 2011 to facilitate his viewing of
the ‘Mission to Prey’ programme. This took approximately two hours. On the following day
there was a consultation between solicitor, client and both counsel, with a duration of 1.5 hours.
The bill of costs at page 41 provides details of counsel’s fees in respect of various consultations
as follows:
Frank Callanan S.C.
Item
168:
Attending pre hearing consultation, 15 November 2011
€500
Item 171:
Further consultations as per fee note 25 October, 2011,
10 November 2011, 16/17 November 2011
€1,500
Jack Fitzgerald S.C.
Item 169:
Fee to include draft, settling Correction Order (the first
issue under the Defamation Act 2009) and 3 consultations
€1,250
Miriam Reilly BL.
Item 170:
Consultation (17 November 2011)
€500
Item 173:
Consultations 21 June 2011, 25 October 2011,
10 November 2011 and 16/17 Nov 2011
to include Correction Order
€2,525
VAT was also charged but is not relevant for present purposes.
In order to deal with these items it was necessary to ascertain the circumstances surrounding
the necessity for these consultations and in the course of which Mr. Dore provided an
explanation of the background to the preparation of the Correction Order and indeed the
drafting of a statement by way of apology which it was intended should be read, in the event of
a settlement, by Mr. Fitzgerald S.C. rather than leaving it to the plaintiff’s counsel, as would be
the norm. Mr. Fitzgerald had drafted the statement and same had been circulated to the other
counsel and solicitor.
In relation to the period 15–17 November 2011 (when the case was in the list for hearing) Mr.
Dore explained that on 15 November there had been a consultation with counsel and the
plaintiff at 9.15 a.m. and also present were two ladies from the Parish Council together with the
plaintiff’s sister and his brother-in-law. Mr. Dore confirmed that this was the first time he had
met these witnesses and proofs were taken by counsel. The action was not reached and all
parties were ‘hanging around all day’. There had been no intimation of settlement discussions
from the defendants.
On 16 November 2011 all witnesses were again present and there were further discussions with
them. Mr. Dore emphasised that during this period consideration was given to the provisions of
the Defamation Act, 2009, pursuant to which the Judge could provide guidelines to the jury in
regard to the assessment of damages. It was intimated that this was in fact the second case to
come before the Court in this regard, the first case having been dealt with only the day before.
It was indicated that the first case concerned a Country & Western singer and in the course of
his address to the jury Mr. Justice De Valera (same Judge as in the instant case) had provided
guidelines and had made reference to the cap on general damages which would be applied by a
Court in catastrophic injury cases whereby a figure in the order of €450,000 might be assessed
under this heading. Mr. Dore referred to the fact that the lodgement was in excess of this
amount and accordingly there was a real danger of the damages not exceeding the amount of
the lodgement. It was necessary to advise the plaintiff in this regard and, it was stated, this
involved a lot of discussion with the plaintiff. In addition, the terms of apology and the
Correction Order were discussed.
The strategy being that the plaintiff’s legal advisers were
preparing the case for a full hearing and in addition, if a settlement was achieved, the agreed
apology and Correction Order would be available immediately. It was emphasised that in
addition to the requirement that the plaintiff’s senior counsel should read the apology in open
court, there was also an insistence on the part of the plaintiff that the journalists and others
who had been instrumental in broadcasting the offending programme should be present in Court
to hear the apology.
It was emphasised that had this preparatory work not been done the
settlement of the action on the following day could not have taken place and it would likely have
taken a further day to conclude the matter.
Mr. Dore explained that the parties were again in Court on 17 November 2011 and a further
consultation took place with plaintiff and witnesses. This consultation was described as more in
the nature of providing support and bolstering confidence in the plaintiff who was extremely
concerned, having regard to the treatment already received by him at the hands of the
defendant. (This is an aspect subsequently referred to by Mr. Fitzgerald S.C.) The jury was
empanelled and following thereon legal argument took place, in the absence of the jury
concerning the defendant’s application for liberty to amend the defence. Ultimately this was not
pursued. Arrangements were made for the provision of facilities in Court to show the relevant
videos and the hearing of the action was scheduled to commence in the afternoon.
During the lunch break settlement negotiations ensued. It was again emphasised that, as a
result of the preparations which had been made by the plaintiff’s legal advisers in regard to the
drafting of a statement of apology and the Correction Order, it was possible, once an agreement
in regard to monetary compensation had been reached, to agree the terms of both documents,
with only slight amendments. There was also agreement to the requirement that the plaintiff’s
senior counsel should read the apology and Correction Order in open court. Only slight
amendments to the documents were required by the defendants. It was also agreed that the
relevant personnel responsible for the broadcast, who were then available, would attend that
afternoon, in Court to hear the formal apology being announced.
There was also an agreement
that the Correction Order and apology would be published in ‘The Irish Times’, ‘The
Independent’, ‘Examiner’ and ‘The Connacht Tribune’.
Discussion took place as to when Mr. Fitzgerald S.C. had been briefed, with Mr. Dore indicating
that this occurred on 18 October 2011 and Mr. Conlon pointing to a letter enclosing briefing
documentation to Mr. Fitzgerald which is dated 20 October 2011. I do not think that a great
deal turns on this aspect. The consultation held on 25 October 2011 with all counsel was
described as a pre trial consultation and there was agreement that a further pre trial
consultation would take place on 10 November 2011.
In Mr. Conlon’s view, all counsel, in the course of their summaries of work were emphasising
the number of consultations and the preparation of the statement to be read out in Court
together with Correction Order as constituting elements which should be taken into account in
assessing the brief fee whereas separate fees were being claimed under these headings. Having
discussed the matter at some length I ruled that, on the party and party basis, the costs of
attendance by counsel at two pre-trial consultations should be allowable. Further, that in
respect of work for which separate fees were being allowed, such as settlement of Correction
Order and statement of apology, such work could not be taken into account as constituting an
allowable element of the brief fee. Accordingly Mr. Fitzgerald’s fees at Item 169 of the bill were
allowed in full on the basis that they included an element in respect of the drafting of the
Correction Order and similarly an additional allowance was made in regard to Ms. Reilly’s fees at
Item 173 in order to provide for the Correction Order consultation in like amount as marked by
Mr. Fitzgerald, who had originally drafted it.
In relation to the assessment of the brief fees, the defendant also briefed two senior counsel
and a junior counsel. I was advised that senior counsel’s brief fees were marked at €35,000 but
this sum had not been agreed and would not be agreed. It was indicated that such fee as is
measured by way of party and party allowance in respect of the plaintiff’s counsel would also be
paid to the defendant’s counsel.
Mr. Dore emphasised that the critical order in this case was the Correction Order and that this
was central to the plaintiff. Mr. Brennan referred me to two comparators as follows:
1.
Kathryn Nelson v Sunday World.
This was a defamation action which was at hearing for four days in the High Court and settled.
I was not provided with a great deal of information concerning the background to the matter but
I have examined the bill of costs which was taxed and will refer to some details later. It was
emphasised that two senior counsel had been briefed with brief fees measured at €27,500 and
two thirds thereof in respect of junior counsel’s fee. The instructions fee had been measured at
€110,000. Mr. Conlon interjected to insist that in fact these allowances had been further
reduced following the hearing of objections whereby the instructions fee was actually allowed at
the sum of €90,000 with the brief fees at €22,500 each and two thirds thereof to junior counsel.
2.
Higgins & Yates v Independent Newspapers.
These were two separate defamation actions the costs of which were also taxed.
Mr. Brennan advised that brief fees for two senior counsel had been allowed at €30,000 each
with the instructions fee at €97,500.
The information provided in relation to this taxation was also quite limited and I have examined
the original bill of costs. I will refer to this later and also Mr. Conlon’s submissions in reference
thereto.
Mr. Brennan asserted that in assessing the appropriate brief fee I must take into account the
complexity of the matter in like manner to an instructions fee (see the matters referred to at
Order 99 Rule 37 (22) (ii) of the Rules of the Superior Courts). It was stated that the Bar
Council confirms that this is appropriate.
It was asserted that the brief fee could not be less than €35,000 having regard to the fee
marked by the defendant’s counsel and whilst the sum marked at €65,000 might be considered
high, in reality the fee should not be less than €60,000.
Mr. Dore indicated that he considered the fee to be eminently reasonable having regard to the
intensity of the work and he also described the work as immense. He had not seen a case like
this before and he invited me to look at the brief fees which might be allowed in Chancery or
Commercial Court cases and which would not require “anything like” the work involved in the
instant case.
He accepted that the work period was from 12 October – 17 November 2011 in
respect of Mr. Callanan and Ms. Reilly and from 18/20 October 2011 in the case of Mr.
Fitzgerald. Mr. Dore confirmed that he has experience in acting in other defamation actions and
had acted for ‘Phoenix’ magazine for many years. Also he had been involved on behalf of
plaintiffs
in other defamation actions.
Given that Mr. Fitzgerald was present I enquired if he would like to add any further clarification
to the assessment of the brief fee and accordingly further discussion took place in this regard.
Mr. Fitzgerald stated that this was the most worrying and onerous case which he had dealt with
in 42 years at the Bar. In the course of a consultation the plaintiff had said to him that he
would have preferred to have been shot (rather than have endured the accusations levelled at
him). The plaintiff did not want to be in Court, he could not understand why he was there, the
client was in fear of “what would they say about him in Court?” Mr. Fitzgerald emphasised that
he had to prepare for (a) the running of the case by way of opening speech, breaking down the
story i.e. the recording of the programme, into segments, for the purpose of showing the jury
the intention of the defendant and (b) on the basis that there would be settlement discussions
this had also to be prepared for.
He emphasised the novelty of the situation whereby the
statement would be read in open court by counsel for the plaintiff and also, uniquely, that the
people who had caused the damage should sit in Court and hear the record being put straight.
In his view it was essential that he should read the statement as the client was not satisfied that
the defendants would do justice to the apology and pointed to the inadequate nature of the
apology which was ultimately read by RTE on television and he referred to the fact that it was
garbled in nature and had caused a public outcry, necessitating a second more fulsome apology
being broadcast.
He emphasised that for the month in question the action had taken over his work, although he
did accept that he would have taken on other briefs during the period. He emphasised that the
plaintiff’s solicitor was constantly on the phone to him and that after the case had settled he
had written to Mr. Dore complimenting him on the manner in which he had ensured that the
hearing of the action was expedited. Mr. Fitzgerald stated that he had set aside eight days for
the trial.
In the course of discussion with Mr. Conlon concerning his fee note and summary of work, Mr.
Fitzgerald accepted that the summary of hours prepared by him was an estimate and was not
reliable to the extent that he accepted there was overlapping for instance, between Item 1 and
Item 8. He also agreed with me that the hours estimated by him were not entirely reliable.
The contents of the brief were also discussed at some length with Mr. Conlon strongly
questioning the “reading time” which had been estimated at 24 hours. This time is in addition
to the other items referred to in the summary. It was emphasised that the brief is relatively
concise. Discussion also took place concerning whether any allowance should be made in
regard to counsel’s time in considering the relevant provisions in the Defamation Act, 2009 and
the Broadcasting Act of 2009 together with time spent in studying the law on privacy. It was
emphasised that the 24 hour period which it was estimated was spent in reading the brief
considerably overlaps with the items which are referred to at 8, 9, 10, 13 and 14 of the
summary.
The summaries of work submitted by Mr. Callanan and Ms. Reilly were also considered with
similar points being made in regard to overlapping of work and questioning the entitlement of
counsel to have, as an element of the brief fee, separate allowance for a research element.
In relation to the comparators proffered by Mr. Brennan it was emphasised that the actual
amount of the brief fees allowed in the Nelson case was €22,500 with the Higgins & Yates brief
fee being allowed as a composite and that it was a specific term of the settlement in both cases
that, having regard to the fact that two sets of proceedings were involved, one enhanced brief
fee should be allowed as between party and party.
Similarly that an enhanced instructions fee
of €97,500 was allowed on the same basis.
Mr. Conlon argued that given the brief fees which were allowed in Higgins & Yates at €30,000 in
respect of each senior counsel were so allowed on an enhanced basis, the fee in the instant case
“has to be lower”. On this basis he suggested that brief fees of €20,000 each would be
reasonable in ordinary circumstances, save, he asserted that in the instant case Mr. Fitzgerald
had a lesser involvement than Mr. Callanan and accordingly his fee should be reduced further.
He could not see any basis upon which brief fees for two senior counsel could be allowed at
€65,000 each and that such fees do not reflect the work, the award, or the prevailing economic
climate. It was argued that the extent of the damages seemed to be the sole basis for the
assessment of the fees as claimed.
RULING.
THE INSTRUCTIONS FEE.
I have carried out a full review of the nature and extent of the plaintiff’s solicitor’s work in this
matter and have been considerably assisted by the submissions made on behalf of both parties.
Firstly, it is necessary to consider the nature and extent of the work undertaken by the
plaintiff’s solicitor herein and in so doing, I take the term ‘nature’ to incorporate any complexity
arising in the matter, the importance of the issues arising in the case, not only affecting the
plaintiff but also the defendants and of course the responsibility factor attaching thereto. In
addition, pursuant to case law (see for example CD v Minister for Health & Children, High Court
[2008] IEHC 299) I am also required to identify any special skills applied by the solicitor in the
prosecution of the case.
The ‘extent’ of the work on the other hand is of a more tangible nature and may be ascertained
by reference to the work disclosed on the file and any explanations thereof proffered by or on
behalf of the plaintiff’s solicitor. The time engaged in carrying out the work is of course also a
very relevant factor to be considered. Such time need not necessarily be assessed by reference
to recorded hours although it may be of assistance to be provided with such information.
However, in the absence of such information it is possible to seek and acquire an appreciation,
in more general terms, of the time expended.
This may be achieved by reference to work
described on the file including correspondence with client, counsel and inter partes. Of course,
the solicitor’s attendance notes would be of very considerable assistance. Unfortunately, no
attendance notes are available to me in this case. The plaintiff’s solicitor accepts that he may
have been remiss in this regard but points to the pressures under which he was acting at all
times given the imperative, in the circumstances of this case, to prosecute the action in the
shortest possible period. I accepted this explanation during the course of the taxation and
indeed it is evident that the solicitor at all times acted to ensure that the action was brought to
a speedy resolution. I have no hesitation in accepting that the solicitor was actively engaged on
the case for the period from date of instructions on 16 June 2011 to the conclusion of the
matter on 17 November 2011, a period of five months or twenty weeks. This is not to say that
he was exclusively so engaged and I do not understand such a proposition as having been put
to me.
Given the devastating effect of the defamation on the plaintiff’s personal and pastoral life, the
solicitor, from the date of receipt of initial instructions on 16 June 2011 formed the view that
the attainment of justice for his client required that the case be put, on an almost constant
basis, at the forefront of his priorities. It is evident that this was done.
As to the nature of the plaintiff’s solicitor’s work, emphasis has been laid by the plaintiff’s
solicitor on the fact that the action was one of the first to come before a Judge and jury under
the provisions of the Defamation Act, 2009 and there was, to an extent, some uncertainty as to
the approach which a Judge might take in addressing the jury, particularly in relation to the
assessment of damages.
This is of course an important factor which undoubtedly did weigh
heavily on solicitor and counsel, especially in the context of the quite substantial lodgement
which had been made by the defence. This however arose quite late in the proceedings and
whilst I accept that the effect of failure to achieve damages in excess of the lodgement required
to be explained to the plaintiff, it was made clear to me, during the course of the taxation that
the plaintiff’s primary concern in this case was the vindication of his name and in particular the
issue of a Correction Order by the Court. The Correction Order is another aspect with which the
plaintiff’s solicitor was undoubtedly concerned but it is clear from my examination of the papers
and indeed it is accepted by the plaintiff’s solicitor that for the most part, the preparation of the
draft and the final Correction Order was carried out by counsel and particularly Mr. Fitzgerald.
The nature of the case also encompasses the urgency and responsibility factors. I am satisfied
that at all stages this action was prosecuted on the basis of utmost urgency. The responsibility
factor is I believe self-evident in this case and the problem which arises is in applying this
undoubted responsibility element to the assessment of the appropriate fee. During the course
of submissions Mr. Conlon adverted to the plaintiff’s solicitor’s almost constant reference, during
the course of the taxation to the extremely serious nature of the defendant’s defamation of the
plaintiff and the devastating consequences for the plaintiff. It is undoubtedly true that the
utterly false allegations publicly broadcast against the plaintiff could hardly have been more
serious particularly having regard to the plaintiff’s calling in life. However, there is a danger in
over-emphasising this aspect in the context of the assessment of an instructions fee. The
plaintiff’s good name has been restored and a substantial sum has been agreed by way of
damages. The instructions fee to be measured, including any element by way of allowance for
responsibility must, in my view, be assessed in the context, firstly of the actual work performed
by the solicitor and in assessing the responsibility element thereafter great care must be taken
to ensure that no element of penalty can arise. The damages have already been assessed and
paid. The instructions fee can only relate to work done. The intangible factors to be taken into
account, including responsibility should ordinarily, in my view, result in a relatively modest
increase in the fee in order to avoid the type of overlapping of allowances adverted to in Best v
Wellcome Foundation Limited [1996] 3 IR 378 at 388, 389.
In my view, the nature and extent of the plaintiff’s solicitor’s work in this case is intertwined
with the skill shown by him in ensuring that, at all stages, this action was speedily prosecuted,
including (as explained by the plaintiff’s solicitor) the necessity of drafting almost all of the
correspondence inter partes and furnishing same to counsel for settlement, prior to issue to the
defendant’s solicitors. There was a sharing of responsibility with counsel. The solicitor ensured
that there were absolutely no delays from any quarter in relation to the delivery of pleadings
and also for the purpose of ensuring that the paternity testing which was required both in
Ireland and in Africa was carried out with all possible speed, including the re-test in relation to
Sheila.
However, insofar as the drafting of the Statement of Claim is concerned, the work of drafting
was primarily carried out by junior counsel. The solicitor received instructions to act in this
matter on 16 June 2011, Fair & Murtagh Solicitors having initially been engaged in
correspondence with RTE, as earlier described. The plenary summons was issued on 17 June
2011, within twenty four hours of receipt of initial instructions and the Statement of Claim
followed on 29 June 2011. It is a lengthy document which undoubtedly involved much time and
attention on the part of junior counsel and to a lesser extent senior counsel. The research
undertaken by counsel is adverted to by her in her summary of work. Both senior and junior
counsel were allowed separate fees of €750 each in relation to the drafting of this document.
Apart from the “responsibility element” on the part of the solicitor, attaching to the Statement
of Claim, the actual work was undertaken by counsel. I note that the preparation of the
transcript of the ‘Prime Time’ programme referred to at Schedule 1 to the Statement of Claim
and the transcript of the ‘Morning Ireland’ broadcast at Schedule 2 thereto was prepared by a
member of the solicitor’s staff.
Prior to engrossment, a copy of the draft Statement of Claim
was sent to the plaintiff for comment and undoubtedly the solicitor did consider his client’s
observations thereon and passed same on to counsel.
There were three interlocutory applications to the Court during the course of the proceedings
namely, ex parte application for short service of notice of motion to abridge time for filing of
defence; subsequent motion to abridge time which was grounded on affidavit and a later motion
and grounding affidavit seeking judgement in default of defence. Again, all of the
documentation relating to these applications was drafted by junior counsel. Unusually, as
between party and party, substantial drafting fees were allowed to counsel, in relation to these
matters and indeed brief fees were allowed to senior and junior counsel also. There was
administrative work and inter partes correspondence on the part of the solicitor in relation to
these applications. The applications were designed to keep full pressure on the defendants and
accordingly were successful in that regard. The responsibility aspect was shared between
solicitor, senior counsel, and junior counsel in relation to these applications.
A detailed and searching notice for particulars dated 8 July 2011 was received from the
defendant’s solicitor and the replies thereto were dealt with as a matter of urgency by the
plaintiff’s solicitor, settled by junior counsel and were furnished to the defendant’s solicitors by
return. During this period there was also correspondence with the defendant’s solicitors in
regard to, firstly, reaching agreement as to the carrying out of paternity testing and secondly,
the logistics thereof.
An equally detailed notice for further and better particulars was received on 15 July 2011 and
again the drafting of replies was dealt with urgently but it must be noted that both senior and
junior counsel were allowed separate fees in relation to the drafting of such replies (see Items
80 and 80a: page 19 in the bill of costs).
The plaintiff’s solicitor laid some emphasis on the assertion by senior counsel for the defendant,
during the course of the plaintiff’s motion to abridge the time for the delivery of the defence on
8 July 2011, that the defence to be delivered would contain a plea of justification. However in a
letter of 10 August 2011 the defendant’s solicitor had stated, inter alia, that “the results of the
paternity test are now the crucial matter in this matter”.
Neither the plaintiff or his legal advisers were ever made aware of the source of the unfounded
allegations against the plaintiff and accordingly were not in a position to investigate same in any
meaningful way. Appropriate enquiries were made with Bishop Sulumeti and there was of
course receipt of the letter signed by Sheila which was authenticated by Fr. Ryan and which
entirely exonerated the plaintiff. Accordingly, I enquired of the plaintiff’s solicitor during the
course of the taxation whether the fact that the defendants were now placing very great
reliance on the awaited result of the paternity test, might have been considered to be of some
comfort to the plaintiff given (a) his confidence that the paternity test was bound to be negative
and (b) it seemed that the defendants were in some difficulty in standing over their allegations.
The solicitor did not demur. Unquestionably, the plaintiff’s solicitor kept up the unremitting
pressure on the defendants to finalise the paternity testing.
The paternity test resulted in the issue of a finding by Ormond Quay Paternity Services to the
effect that the alleged father’s DNA did not match the corresponding DNA in the child. This
finding is dated 2 September 2011. The plaintiff’s solicitor made reference to the fact that
neither he nor his client were immediately informed of this finding by the defendant. Rather,
his client was informed by a journalist to whom the result had apparently been leaked. I do not
believe that this aspect adds in any significant way to the assessment of the instructions fee.
However, I have noted all correspondence relating to the requirement by the defendants for a
second paternity test on the basis of possible difficulties in regard to the identification of the
child prior to the first test. This concept was strongly disputed by the plaintiff but
notwithstanding, the second test duly took place and also proved negative.
It was following the second test that the defendant’s solicitor’s letter of 28 September 2011
acknowledging that the allegations made by them were entirely unfounded, was received. The
defence was received on 29 September 2011 together with the lodgement. There was a
Reynolds v Sunday Times defence at paragraph 8 of the defence in following terms:
“Without prejudice to the foregoing, the words published constituted fair and reasonable
publication in a matter of public interest”.
Mr. Dore Solicitor had stated to me that in his view this was tantamount to a full defence.
Undoubtedly such a plea together with the alternative plea that the words were published on an
occasion of qualified privilege put the plaintiff in some peril in regard to damages and costs.
The defendants did subsequently on 6 October 2011 broadcast an apology on the ‘Prime Time’
programme and on the following day on the ‘Morning Ireland’ programme. Senior Counsel in
his advice on proofs dated 14 October 2011 anticipated “that the principal thrust of the
defendant’s case will in the end be highly apologetic, and will seek to assert that the
broadcasting of the apologies has done a great deal to undo any enduring damage to Fr.
Reynolds’ reputation”. Counsel further advised that whilst the apologies were “pretty fulsome”
the plaintiff should argue, while accepting that the apology was a mitigating element, it did not
take the heart out of the claim for damages and that it should also be possible to cast an
argument to the effect that the apology did not obviate the appropriateness of the Court making
a Correction Order pursuant to Section 30 of the Defamation Act, 2009. He directed that
consideration be given to what a retraction pursuant to a Correction Order should contain rather
than seeming to suggest that a Court should order the publication of an apology replicating that
which already been broadcast by the defendant.
Clearly, no plea of justification had materialised in the defence. The Reynolds v Sunday Times
defence would ultimately have been a matter for counsel to address and there is no evidence on
the file that the plaintiff’s solicitor was greatly involved in this aspect although perhaps
discussions would have taken place with counsel and the client in relation to it. The absence of
attendance notes is again noted.
The witnesses whom it was intended to call would have given evidence in relation to the serious
situation which arose for the plaintiff as a result of the impugned broadcasts. The plaintiff’s
solicitor had not spoken to any of the witnesses apart from the plaintiff himself, prior to 15
November 2011 when the action was in the list for hearing. Accordingly there was little work in
this regard.
As to the work in relation to ascertaining the viewer and listenership figures,
including internet coverage, it seems that junior counsel carried out most of this. It was also
junior counsel who carried out research into previous libel awards and settlements and duly
furnished this research to the solicitor.
Jack Fitzgerald, S.C. prepared the first draft Correction Order on or abut 11 November 2011 and
on the same date furnished it to the solicitor followed by an updated version thereof later that
afternoon. I cannot pin down the exact date on which the draft statement of apology to be read
in court was prepared by Mr. Fitzgerald. However it is clear that on 14 November 2011 junior
counsel sent an email to the plaintiff’s solicitor attaching the draft statement which had been
discussed with Mr. Fitzgerald. It seems clear that the principal work in relation to these draft
documents was carried out by counsel and prior to the date fixed for hearing, not during the
course of the days on which the case was listed for hearing and not reached.
I turn now to the estimate of time which Mr. Conlon advocated I should take into account in
assessing the instructions fee. Whilst there is a slight discrepancy in the number of hours
identified by Mr. Conlon and my calculation of the total thereof, I do not think that this is in any
way material. The purpose of the estimate was to provide a possible guide to or overview of
the time which might have been involved, in the absence of actual records having been kept by
the plaintiff’s solicitor. I think it would be unsafe to adopt the estimated time as suggested by
Mr. Conlon at an overall 140 hours (or 17.5 full 8 hour days) given the plaintiff’s solicitor’s
assertion that considerably more time was expended by him and that the case “had pervaded
his office” during the relevant period. I note however that even if the time estimated by Mr.
Conlon is doubled to 228 hours or 35 full days, the resultant fee calculated at €375 per hour
(which ought not apply to all of the hours concerned given that some of the work was carried
out by assistants), would amount to €85,500. In my view, it is perfectly legitimate to test, in
this manner, the instructions fee which is claimed at €275,000, provided of course a proper
appreciation of the nature and extent of the solicitor’s work has been achieved.
A further test relates to the consideration of relevant comparators. Two cases, which are said
to constitute appropriate comparators were cited by Mr. Brennan and unusually, Mr. Conlon was
happy to adopt both cases as indicating an entirely opposing position. Mr. Dore, on the other
hand asserted that the instant case was unique and not amenable to comparison with any other
case. I do not think that this latter proposition is tenable given that the Court has frequently
endorsed the use of comparators by way of general guide or application of a yardstick against
any fee under consideration. Of course, no two cases are going to be exactly similar, a point
adverted to by Herbert J. in CD v Minister for Health & Children and thus, allowing for any
differences, it should be possible to arrive at a reasonably informed view of the fee under
consideration.
In the first comparator, Nelson v Sunday Newspapers Limited (2007 No.
663 P) the question
which was put to the jury following a three day hearing was “Did the articles published by the
defendant (Sunday World) on 27 February 2005 mean that the plaintiff (Ms. Kathryn Nelson)
was actively involved in money-laundering on behalf of the Sinn Fein/IRA crime machine?”
The action was settled, for an undisclosed sum, before the jury finished its deliberations. The
action had been fully defended and there was a plea of justification. In fact there appears to
have been a complication in that one of the personae dramatis had apparently been convicted of
serious money-laundering offences relating to the money in question. There were also other
factual issues relating to the transfer of an asset from the plaintiff to this witness which might
have been of significance and senior counsel had emphasised, in particular, the shift of onus of
proof in light of the plea of justification in the defence. It also appears that there was a
discovery element to the proceedings which was described as complex involving non-party
discovery, at the instance of the defendant in an attempt to justify the commentary in the
impugned article. This discovery related to the plaintiff’s custody records and Garda interview
while she was detained under the provisions of Section 30 of the Offences against the State Act,
1939 on 25 February 2005.
The work was carried out during the period February 2006 – November 2010. The instructions
fee was claimed at €151,000 and was allowed initially by the Taxing Master at €110,000 and,
ultimately, upon the consent of the parties, at the sum of €90,000.
Brief fees were allowed to each of the two senior counsel at €22,500 with refresher fees at
€3,200 each.
In the second comparator, Higgins & Yates v Independent Newspapers (Ireland) Limited (2004
No. 19651 P and 2004 No. 19650 P) two sets of proceedings were issued and both were settled
prior to hearing for undisclosed sums and an Order being made, on the consent of the parties,
whereby the costs would be taxed “to include all reserved costs and costs of discovery, on the
basis of an enhanced instructions and brief fee to reflect the fact that there were two sets of
proceedings”. Both plaintiffs were politicians and one of whom, at the date of the institution of
the proceedings was a member of Seanad Eireann with the second being a former Government
Minister. Both had instituted their proceedings on the basis that the contents of an article in the
defendant’s newspaper had grievously impugned their reputations given the inferences that
they had been engaged in criminal acts involving multi-million euro fraud, had entertained
terrorists and were MI5 agents. The defence included a denial that the words published bore or
were capable of bearing any of the meanings outlined in the statement of claim and further that
such words were published on an occasion of qualified privilege. The plaintiffs obtained an
Order for discovery against the defendants and a small amount of documents including a tape of
a certain interview were discovered by way of affidavit. Nine witnesses were involved (covering
both cases), the period of work covered was from November 2004 – November 2008 and the
instructions fee was measured by the Taxing Master at €97,500. The brief fees in respect of
two senior counsel were reduced from €35,000 to €30,000 each with two thirds thereof to junior
counsel which allowances reflected the enhanced character of the fees. No refresher fees arose.
The facts and allegations referable to both comparators, of course, carried high importance for
the respective plaintiffs. I have alluded earlier to the danger of over-emphasising the
importance and responsibility aspects of a case. I have no difficulty in accepting that the
instant case carried with it an exceptionally high degree of importance from the plaintiff’s
perspective and that there was a wider public importance aspect to it in addition. A heavy
responsibility rested on the plaintiff’s solicitor and counsel. Mr. Dore, in the course of his
submissions concerning the likelihood of the court providing guidelines in relation to the
assessment of damages, adverted to the fact that the Court, in a case heard on the previous
day, had alluded to the cap on general damages applicable in catastrophic injury cases. In the
course of a review of a Taxing Master’s decision in Cooney v Independent Newspapers Limited,
4 April 1979, the President of the High Court Mr. Justice Finlay (as he then was) referred to the
responsibility resting on both solicitor and counsel, particularly where a politician had been
defamed, as being analogous to that resting on a solicitor or counsel in relation to a catastrophic
injury case.
I have no difficulty in accepting that in the instant case the responsibility factor was great and
equivalent to that applicable in the cases referred to by the Court or indeed in substantial or
complex commercial cases. There are differences of course and the principal one being that in
substantial injury cases, for instance, it would not be unusual to have 25 to 30 expert witnesses
engaged in relation to liability and quantum issues. The work of assembling such extensive
proofs and considering expert evidence does not normally arise in relation to defamation cases,
nor did such work arise in the instant case.
This is a crucial differenciating factor which it is
essential to bear in mind in terms of the extent of the solicitor’s work herein. In my view the
actual work carried out by the plaintiff’s solicitor in this case was not particularly complex in
nature. It was carried out as a matter of extreme urgency and with great efficiency and
dedication. I do think that the comparators which have been proffered indicate, having regard
to my knowledge of the work carried out by the plaintiff’s solicitor in the prosecution of this
case, that the fee as between party and party could not exceed the sum of €97,500 which was
measured by way of an enhanced instructions fee in Higgins & Yates as covering two actions
and a period of time greatly in excess of that in the instant case. This is the high water mark
against which the proposed fee of €275,000 has to be considered. In addition, the current
economic downturn and the consequential decrease in professional fees, as adverted to in
recent judgements such as Bourbon v Ward & Ors. [2012] IEHC 30 and ESG Reinsurance (Ire)
Limited (under Administration) [2010] IEHC 365 should be factored into the assessment.
Having considered the solicitor’s file and having heard Mr. Dore, in particular, at some length, I
do accept that the estimate of professional time expended on the case as proffered on behalf of
the defendant is too light. It is impossible to provide an accurate calculation of time at this
stage.
Taking into account the value of the case, both in monetary and reputational terms for the
plaintiff together with the matters already adverted to I am satisfied that a fair and reasonable
instructions fee as between party and party, is the sum of €80,000.
THE BRIEF FEES.
The two senior counsel concerned have each marked brief fees at €65,000 with junior counsel’s
fee amounting to €43,500. The defendant has asserted that the allowance, as between party
and party, should be no more than €20,000 in relation to seniors’ brief with an appropriate
allowance in respect of junior counsel. A further submission was made to the effect that the
brief fee for Jack Fitzgerald S.C. should be reduced to take into account the assertion as to his
lesser involvement in the case.
I do not believe that there is any basis upon which I could reasonably hold that Mr. Fitzgerald’s
brief fee should be allowed at a lesser sum than that applicable to Mr. Callanan. Both counsel
were in receipt of the briefs within days of each other and I am satisfied that Mr. Fitzgerald was
fully and completely prepared for the hearing such that it would render an injustice to the
plaintiff to impose a reduction in the brief fee on this basis.
However, I am satisfied that the brief fees as marked and claimed in the bill of costs cannot be
upheld, as between party and party.
It has been asserted on behalf of the plaintiff that in assessing the brief fees I must take into
account the complexity of the issues arising together with the importance and responsibility
factors, in like manner to the assessment of an instructions fee. I have no difficulty with this
and I am happy to consider the brief fees on this basis, including an assessment of the time
element involved also. The brief fees should also be tested against appropriate comparators. In
addition it is appropriate to take into account where relevant, the matters referred to by counsel
in their respective summaries of work undertaken by them. I have had the benefit of hearing
explanations from Mr. Fitzgerald in relation to the nature and extent of the work undertaken by
him. However, I have had no real information as to the extent of the work which could justify
the fees claimed.
There is absolutely no doubt that the outcome of these proceedings was a matter of utmost
importance to the plaintiff. I have already alluded to this aspect in reference to the assessment
of the instructions fee. The importance of the matter to the plaintiff and indeed to the
defendant is of relevance to the assessment of the brief fees: Attorney General v Simpson (No.
3) [1963] IR 329 at 339. It is clear that I must give some weight to the importance of the
matter to both parties in assessing the brief fees and give consideration to the overall
magnitude of the case. I think it is implicit in the provisions of Section 27 of the Courts and
Court Officers Act, 2005 at sub sections 1 and 2 thereof, that the requirement that the “nature
and extent” of counsel’s work be taken into account including the overall magnitude and
importance of the case, has been put on a statutory footing also.
The difficulty is in placing a monetary value on importance, complexity or responsibility. The
professional time and effort which counsel may expend in considering the papers contained in a
brief and generally preparing for trial would usually constitute a reflection of the difficulty or
complexity of the legal or factual issues arising and the importance or magnitude attaching to
the particular case. In addition there is the public importance aspect. There is a danger,
however, of making an over-allowance in relation to these aspects. It must be borne in mind
that the comparator brief fees already cited do contain a responsibility element by way of
incorporation of these factors. In placing a value on responsibility and importance I have to
ensure that no element of penalty enters into the assessment, particularly in cases of this sort.
I do not think it appropriate to place a particular valuation on these factors and in my view the
appropriate manner of assessment is by reference to the nature and extent of the work as a
whole, with due recognition being given to these intangible features.
Mr. Fitzgerald has been commendably forthright in his acceptance before me that the estimates
of time expended by him on the case are not reliable. I note that Mr. Callanan in his summary
estimates his time in reading the brief (given his prior involvement) was of the order of 8 hours.
I accept of course that such reading time is but one element of the nature and extent of
counsel’s professional work. Some debate also took place concerning whether the relative
novelty of both the Defamation Act and the Broadcasting Act which were passed in 2009 should
be taken into account. I do think there is some merit in this argument but given that counsel
are briefed as advocates, expert in the law, I do not think that this aspect is of great
significance.
The work of and incidental to preparation of the Correction Order and the statement of apology
was principally carried out by Mr. Fitzgerald and Ms. Reilly. Separate fees have been allowed in
this regard.
The defendant’s submission is that senior counsel’s brief fee should be assessed at €20,000. I
believe this assessment is too low. The defendant’s senior counsel have marked their brief fees
at €35,000 but I am informed that such fees will not be discharged. The defendant apparently
intends to pay to its counsel the amount of such brief fees as are taxed as being reasonably
payable to the plaintiff by way of party and party indemnity. I am entitled to have regard to the
fact that the defendant’s solicitor regards the brief fee on a solicitor and client basis at €35,000
to be too high.
This action must, in my view, be accepted as being at least on parity with the two comparators
in terms of importance and overall magnitude. Whilst individual plaintiffs will subjectively
consider their own actions to be of the highest importance, I consider that the instant action
does carry an additional importance and responsibility element.
However, I do not accept that this case is so unique as to be incapable of comparison with other
cases. In Mr. Dore’s view the brief fees as marked at €65,000 each are eminently reasonable
and he emphasises the intensity and immensity of the work. I have been invited to consider
chancery or commercial cases by way of comparator but none have been identified to me. I do
not think such comparison is valid and I have already adverted to the range of witnesses usually
involved in catastrophic injury cases. Equally, in commercial cases it is commonplace to have a
number of expert witnesses in addition to legal submissions ranging from statutory
interpretation to contractual rights or obligations, prior to assessment of damages which might
require other expert evidence. Like must be compared with like and in my view the appropriate
comparators are to be found in other defamation actions.
The brief fees which were allowed in the Higgins & Yates case were composite in nature and
enhanced to take into account the fact that two sets of proceedings were involved. Given their
enhanced nature, in my view similar brief fees, namely €30,000 in respect of each senior
counsel might be indicated in the instant case in order to reflect the extent of the work, the
exceptional responsibility borne, the overall magnitude and value of the case. However, I am
cognisant of the comparatively recent judgements of the court to which I have already adverted
in the context of my consideration of solicitor’s professional fee and accordingly a further
reduction is warranted. In my opinion the appropriate brief fees should amount to €26,000.
I have considered the papers which were submitted to me as constituting the brief held by
Miriam Reilly BL. I am satisfied, having considered her papers, the quite extensive handwritten
notes prepared by her and her research work, that junior counsel’s brief fee is fairly assessed as
between party and party, at €20,000.
Accordingly I allow €26,000 as a disbursement in relation to each senior’s brief with €20,000 in
respect of junior counsel.
Dated the 16th day of May 2012
Declan O’Neill
Taxing Master.