The President of the High Court delivered a reserved judgment in the case of Isabelle Sheehan, A Minor -v- David Corr on the 27 February 2015 following a three day High Court Hearing challenging the Taxing Masters decision to reduce the plaintiff solicitor’s general instructions fee from €485,000.00 to €276,000.00. This was a claim for damages arising out of alleged negligence in the management of the ante natal care of the plaintiff’s mother. The plaintiff developed Cerebral Palsy and the case ran for five days in the High Court before being settled on an interim basis pending the enactment of legislation governing periodic payment orders. The State Claims Agency represented the paying party.
Core principles for assessment
The following core principles going to the assessment of solicitor’s professional fees may be extrapolated from a comprehensive judgment of the President of the High Court who expressly approved earlier case law in this area:
- Section 27 of the Court and Court Officers Act 1995 imposed a duty on the Taxing Master of the High Court to examine the nature and extent of the work done
- Objectively examine each of the separate items in the bill of costs comprising the general instructions fee
- Ascertain precisely what work was done by the Solicitors for the costs
Whether it involved exercise of some special skill on the part of the doer, what that skill was and why it was necessary
- Indicate what amount of time he considered should have been devoted to the work involved
Whether the doer of the work bore any special responsibility, identifying what he considered that to be and how it arose
- The extent to which the work was proper and necessary for the attainment of justice as to be allowable as between party and party
- The fact that a condition is rare and unusual does not necessarily render the case more complex in terms of work or preparation
- The “no foul no fee” retainer under which the case was taken did not alter or increase the nature and extent of the work done and in any event the paying party should not be required to subsidise the plaintiff’s solicitors business model or indemnify them against risks entered into on a voluntary basis.
The judgment, which is now under appeal to the Court of Appeal, is a very useful guide to the assessment of solicitors professional fees emphasising the need to keep proper and accurate records and also clarifying the Taxing Masters duties and obligations on a taxation of costs.
Article by: David Mack, Head of Legal Costs, State Claims Agency