Supreme Court dismisses appeal on costs taxation, rejecting allegations of judicial compromise and low fees.

THE SUPREME COURT

135/00

Denham, J.

McGuinness, J.

Hardiman, J.

BETWEEN

ALISON BLOOMER, UNA MICHELLE BRIEN, RICHARD BULLICK, VANESSA BYRNE, PAUL CAMPBELL, JILL CLULOW, BRIAN COLE,

STEPHEN GERARD COY, LEWIS JOHN CHERRY, CLARE DOHERTY, FIONA DUMMIGAN, JONATHAN L. DUNLOP, KATHERINE B.

FINNEGAN, PATRICIA GROGAN, RONAN HAUGHEY, JACQUELINE KEE, CORANN KING, MARIE-LOUISE LOWRY, MARK

McELHINNEY, BRIAN McLOUGHLIN, KATHERINE McGILLIE, JOSEPH D. McVIEGH, FIONA McKIMM, JOHN MACKIN, HEATHER

MATCHETT, PAMELA ANN MORGAN, LOUISE MULHOLLAND, BRONWYN A PURVIS, MARK REEL, ADRIAN RUTH, IAN STANFIELD,

DORIT STUMPER, DENISE TAYLOR, GRAINNE TURLEY AND KARYN A. WOODS

PLAINTIFFS

AND

THE INCORPORATED LAW SOCIETY OF IRELAND, IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS

JUDGMENT of Mrs Justice McGuinness delivered the 30th day of July 2001

This appeal arises from the taxation of costs in the above entitled action which was initiated in the High Court and subsequently

went on appeal to this Court. Following the Order for Costs made in this Court, to which I will refer later, all the costs went to

taxation. The taxation was carried out by Taxing Master Moran. Somewhat unusually, the Taxing Master, in addition to the

customary submissions by the Legal Costs Accountants on each side, was presented with oral evidence given on behalf of the

plaintiffs both by Senior Counsel who appeared for the plaintiffs, Dr. White, and by the plaintiffs solicitor, Mr Denis O’Sullivan.

The Taxing Master gave his determination on the matter on 28th May 1998. Both sides carried in objections. Having considered

these objections the Taxing Master gave his written review of the taxation on the 4th March 1999. The plaintiffs then applied

to the High Court to review the taxation. The High Court (Geoghegan J.) carried out a review of the Master’s taxation. The

learned High Court judge in his reserved judgment given on 3rd December 1999 increased the amount of the brief fee for the

High Court action to be paid to senior and junior counsel but otherwise confirmed the determinations of the Taxing Master. It is

from the judgment of Geoghegan J. that the plaintiffs have appealed to this Court.

The factual background to the proceedings is set out by the learned High Court judge in his judgment. The plaintiffs were

graduates of Queen’s University Belfast who had attained the degree of Bachelor of Laws (LL.B.). They sought a declaration

that they were entitled to the same recognition and the same exemption from the first part of the final examination of the Law

Society as was afforded to graduates of the National University of Ireland, the University of Dublin and the University of

Limerick who held a primary degree in law of one of those universities or who held a primary degree partly in law and partly in

another discipline. They also sought a declaration that the first and second named defendants were guilty of wrongful

discrimination as regards graduates in law of Queen’s University Belfast. The plaintiffs also made a claim for damages including

aggravated and/or exemplary damages for conspiracy and/or breach of duty and/or breach of statutory duty and/or for alleged

wrongful interference with the right asserted by some of the plaintiffs and/or breach of duty under the laws of the European

Union and under the European Convention of Human Rights. The proceedings were heard in the High Court before Laffoy J. A

number of issues were raised at the hearing but the only issue on which the plaintiffs were successful was in establishing to the

satisfaction of the trial judge that Regulation 15 of the Law Society Regulations of 1991 (which excluded Queen’s University

from the exemption) was invalid as being discriminatory and contrary to Article 6 of the Treaty of Rome. Laffoy J. however

refused to make a specific declaration to that effect and made an order for costs in favour of the Law Society.

The plaintiffs appealed her order to this Court. The appeal was listed for hearing but prior to the hearing, on 3rd October 1995,

the Law Society announced that it had agreed to amend the relevant regulation and to extent the exemption to graduates of

the Queen's University Belfast. When the appeal came before this Court, therefore, the main issue was the question of costs.

The plaintiffs also sought a specific declaration that the original regulation was invalid as being contrary to Article 6 of the

Treaty of Rome. In addition the plaintiffs pressed for an entitlement to damages for conspiracy. The decision of this Court was

given in an ex-tempore judgment by Hamilton C.J. on the 6th February 1996. In this judgment the Court robustly rejected the

plaintiffs claim for damages and all allegations of conspiracy, but allowed the appeal to the extent of making the declaration as

to the invalidity of the regulation and awarding to the plaintiffs against the Law Society the costs of the High Court on the

basis of an eight day hearing and limited to the issue of the invalidity of the regulation having regard to the Treaty of Rome.

The plaintiffs were also awarded half the costs of the appeal but excluding any costs in connection with written submissions

made to the Supreme Court. This exclusion was based inter alia on the nature of the allegations made against the Law Society

and against individual members of the Society which were contained in the said submissions. The Order for Costs made by this

Court on 6th February 1996 was as follows:

“IT IS ORDERED AND ADJUDGED that the said appeal insofar as it relates to costs as between the plaintiffs and the first

named defendant be allowed and that the said order of the High Court be varied by setting aside the award of costs in

favour of the first named defendant contained therein and by substituting in lieu thereof an order that the first named

defendant do pay to the plaintiffs their costs of the action in the High Court on the basis of eight days hearing limited to

the costs of determining the issue of European Law concerning the validity of Regulation 15 of the Regulations aforesaid.

And IT IS ORDERED that the first named defendants do pay to the plaintiffs one half of the costs of this appeal when

taxed and ascertained but specifically disallowing any costs or fees incurred in connection with the preparation of the

submission made to this Court on behalf of the plaintiffs

And By Consent IT IS ORDERED that the award of costs in favour of the second and third named defendants contained in

the said order of the High Court be set aside and that there be no order as to the costs of the said appeal insofar as

concerns the second and third named defendants.”

The taxation of costs then proceeded as already set out above.

When the review of taxation came before Geoghegan J. in the High Court four items were in dispute, as follows:

1. The solicitor’s instruction fee in the High Court.

2. Senior Counsel’s brief fee in the High Court.

3. Senior Counsel's refresher in the High Court.

4. Senior Counsel’s brief fee on the appeal to the Supreme Court.

It was not, of course, in dispute that junior counsel would receive the normal brief and refresher fees of two thirds that of

senior counsel.

As far as the items in dispute were concerned, the decisions of the Taxing Master were as follows:

1. The solicitor’s instruction fee in the High Court was claimed at £210,000. The Taxing Master allowed a fee of £76,000

and this was unaltered in his review.

2. The brief fee for the High Court marked by senior counsel, Dr White, was £47,500. During the hearing before the Taxing

Master it emerged from Dr. White’s own evidence that this fee included a charge for an unspecified number of

consultations with clients and/or solicitor for which separate fees had not been marked. In the event the Taxing Master

allowed a brief fee of £12,600, which he confirmed on review.

3. Senior Counsel marked a refresher fee of £6,000 per day in the High Court. This was also reduced by the Taxing

Master. In his original determination he allowed a fee of £2,625 per day, but on his review he increased this to a sum of

£3,150 per day.

4. The brief fee marked by senior counsel for the Supreme Court hearing was £25,000. The Taxing Master reduced this to

a figure of £10,000 and confirmed this figure on review.

The Decision of the High Court

In the High Court the plaintiffs sought an upward revision of all these fees. The learned High Court judge, having considered the

submissions of counsel and surveyed the applicable law, upheld the determinations of the Taxing Master with regard to the

solicitor’s instruction fee, senior counsel’s refreshers in the High Court, and senior counsel’s brief fee in the Supreme Court. For

a number of reasons, which he set out in his judgement, Geoghegan J. increased the amount allowed for senior counsel’s brief

fee in the High Court from £12,600 to £21,000.

In allowing this increase the High Court judge firstly stressed, as did the Taxing Master, that this was a case which was largely

barrister-led. At page 9 of his judgment he stated:-

“It may not be an exaggeration to say that this unusual, important and complex case was devised, prepared, managed

and ultimately fought by senior counsel, Dr White.....”

Geoghegan J. considered that in the preparation of the case Dr White had carried out work which would normally be done by a

solicitor. There was no suggestion of unprofessional conduct. The learned judge stated (at page 10):

“But there are areas of work which a barrister may in certain cases legitimately do and which may, I think, be taken into

account in determining his brief fee even it though it goes somewhat beyond the work which a barrister would ordinarily

do in an ordinary case such as for instance a personal injury action. An example of what I have in mind is a case

involving some highly specialised branch of the law such as for instance Patent Law or perhaps Competition Law with

which the particular solicitor who has been instructed is totally unfamiliar. Such a solicitor, if he is acting prudently, will

engage the services of a specialist Counsel. In relation to mounting the action and organising the proofs, that barrister

may well in practice be involved in day to day directions that go far beyond the ordinary pre-trial advice on proofs.”

In the proceedings brought by the plaintiffs specialised knowledge, which was possessed by Dr White, was required in comparing

the law of the Republic of Ireland with the law of Northern Ireland. The judgment concluded that there seemed “little doubt that

he (Dr. White) put an exceptional amount of sweat and energy into the preparation and conduct of the case”.

Geoghegan J. also considered that the Taxing Master fell into error in failing to appreciate the true importance of the case. At

page 12 of his judgment he dealt with this factor:

“Neither his rulings in the original taxation nor on the review of taxation indicate that he adequately appreciated the

importance of the case. This was a class action brought by thirty five plaintiffs. If the action had been from the start

confined to the single issue referred to in the Supreme Court order, it would still by any standard be an action of the

utmost importance potentially affecting the future livelihoods of the plaintiffs and boldly attacking the Law Society’s

admission arrangements, notwithstanding that these were contained in a statutory instrument. The action founded as it

was on illegal discrimination was obviously difficult to mount and difficult to conduct. But I do not think that the Taxing

Master’s comments reflect that fact.”

The High Court judge also believed that the Taxing Master had laid too much stress on the word “issue” in the costs order made

by this Court. He said that what was allowed to the plaintiffs in reality was the costs of an eight day action claiming the

invalidity of the relevant regulation on the grounds of discrimination.

Finally Geoghegan J. dealt with the question of comparison with the fees marked by senior counsel for the Law Society. Both

before the Taxing Master and in the High Court it had been submitted on behalf of the defendant that the brief fee to be

allowed to senior counsel for the plaintiffs should be related to that charged by each of the senior counsel appearing for the

defendant, which fees were considerably lower. The learned High Court judge disagreed with this approach. He concluded his

judgment thus:

“There is only one other matter to which I would like to refer. Reliance was placed by the defendants, and to some

extent I think by the Taxing Master, on the amount of fees marked by counsel for the defendants. The defendants

engaged two senior counsel and their combined fees are less than the fee I am now allowing Dr. White. I think that it

has always been held that regard should be paid to the fees marked by the other side in a taxation but the Courts have

never gone further than that. I think that this was a more difficult action to mount and fight than to defend. The Taxing

Master was clearly of that view himself, having regard to the substantial differential between the refreshers. Where two

comparable commercial companies are litigating against each other the fees marked by counsel for the unsuccessful

party may well be highly relevant as in that case there could be no extraneous circumstances affecting the amount of

fees marked. But in a case such as this the two sides are in quite different positions and I think that little or no value

can be attached to the evidence of the fees marked by counsel for the defendants.”

The Notice of Appeal

In a lengthy notice of appeal to this Court dated 20th December 1999 the plaintiffs seek an upward revision of all the fees as

determined by the High Court. The grounds of appeal are many and varied. The first three grounds deal with a statement made

by the High Court judge in the course of his judgment that at the material time Dr. White, as well as being a senior counsel of

the Irish Bar, was a member of the academic law staff at Queen’s University Belfast. It is stated in the grounds of appeal not

only that this is inaccurate but also that this finding “was fundamentally unfair and unjust and wrongly disparaged said senior

counsel’s reputation and good name”.

Ground 4 in the notice of appeal challenges the finding by the High Court judge that senior counsel “devised, prepared,

managed and ultimately fought” the action. Grounds 5 to 14 challenge in various ways the findings of the High Court in regard

to the amount and nature of the work done by senior counsel in the case.

1 Further grounds deal with the decisions of the High Court regarding the solicitor’s instruction fee, the refreshers allowed to

counsel, and counsel’s brief fee in the Supreme Court.

Submissions of Counsel

In his detailed written submissions to this Court senior counsel for the plaintiffs, Dr. White, dealt with the background to the

proceedings and their history. In both his written and oral submissions he laid great stress on the evidence given by both

himself and Mr O’Sullivan, solicitor for the plaintiffs, before the Taxing Master. This evidence concerning the level of their fees,

he said, had not been adequately challenged by the defendant Law Society, nor had the Society brought proper evidence to

contradict it. Dr. White argued that in the absence of countervailing evidence the Taxing Master was bound by the evidence

given on oath by himself and Mr O’Sullivan. He should therefore have allowed the fees claimed by them without making any

reduction. Where the findings were made otherwise than in accordance with the evidence the verdict must have been governed

by prejudice.

Dr White went on to detail the extensive and skilled nature of the work carried out by Mr O’Sullivan in preparing and running the

case in the High Court. The fee allowed by the Taxing Master, and confirmed by the High Court, in no way reflected the level of

commitment and expertise involved in the case, he said. Nor did it reflect the enormous importance of the case and the

intensely difficult position of Mr O’Sullivan in “suing his own Society”.

With regard to his own brief fee for the High Court action, Dr. White objected to a comparison made by the learned High Court

judge with the fee that “solicitous parents” would have been willing to pay for counsel in such a case. In his written

submissions he states (which is obvious) that he had not been instructed by “solicitous parents” and goes on to say:

“On the contrary, the action had been brought by a young, but immensely mature, adults who were doing something

which their parents would never have had the courage to do - come together to take on the most powerful institution in

the neighbouring State where the institutions of that State were manifestly hostile to them.”

Senior counsel for the plaintiffs also rejected all comparisons with the fees charged by counsel for the Law Society, Ms Finlay

and Mr Fitzsimons, which he described as “astonishingly smaller”. In his written submissions he provided a lengthy analysis of

the fees marked by these counsel. This submission was, however, unnecessary, since the learned High Court judge had, in my

view correctly, clearly rejected any comparison with the brief fees marked by counsel for the defendant. The defendant had not

appealed against this finding, which accordingly must stand.

In both his written submissions and his oral submissions to this Court senior counsel for the plaintiffs laid considerable emphasis

on the statement contained in the judgment of the High Court that he (Dr White) was a member of the academic staff of

Queen’s University Belfast. He argued that this created a wrong impression of his role vis-à-vis the plaintiffs. In relation to this

matter Dr White in his written submissions argued as follows:

“Had Mr. White indeed been a member of the academic law staff at the Queen’s University Belfast, one could understand

how this could be relied upon to reduce his brief fee on the basis that - at least if he were a full-time academic, his

activities as counsel were being subsided by his university emoluments. Moreover, he would have access to the law

school’s experts; and immediate access to the clients who were students of the law school. Indeed, the learned judge

found as a further ‘fact’ that: ‘Dr White was equipped with the specialist knowledge as how to identify and excess the

appropriate witnesses’ in order to obtain comparative evidence between the law in the Republic of Ireland and the law in

Northern Ireland to establish the factum of discrimination. Moreover, if senior counsel were so employed by the

university, he might expect some further benefit from the university for advancing the case of its students who were

the victims of institutional discrimination in the Irish Republic.”

In his oral submissions to this Court Dr White followed the same lines. He stated to the Court that at no time had be been a

member of the academic staff of Queen’s University Belfast. He explained that during the relevant period he had, for reasons

which he did not explain, been resident in Belfast, and had given a number of lectures as a visiting lecturer to law students in

Queen’s.

In regard to senior counsel’s refresher fees in the High Court, Dr White stressed the number of new matters which arose and the

new documents which were produced, during the course of the trial. All of this necessitated a great deal of extra work by both

solicitor and counsel on each day of the trial.

With regard to the brief fee in the Supreme Court Dr White again submitted that the fee originally marked had not been properly

challenged in the hearings before the Taxing Master. Full preparation for the appeal was required to be carried out. The

plaintiffs could not know that the Law Society would amend the regulations prior to the hearing of the appeal.

Senior Counsel for the defendants, Mr Connolly, accepted the findings of the High Court in regard to the relevant fees. He

submitted that the Taxing Master had given careful consideration to the submissions and the evidence before him, as could be

seen from his detailed determinations. It was clear that he was acting within his jurisdiction. Mr Connolly submitted that Dr

White’s arguments in regard to the oral evidence before the Taxing Master were wrongly based. The hearing before the Taxing

Master was not comparable with a trial before a judge or jury. The Taxing Master had a wide discretion, based on his expertise

and experience as a solicitor, to have regard both to the oral evidence and to the documentary evidence before him, as well as

to the expert submissions of the legal costs accountants. He also had a discretion to rely on his own experience of the level of

costs and fees in comparable cases.

Traditionally the High Court was slow to interfere with the Taxing Master’s determination in regard to solicitor’s instructions

fees, since judges felt that they lacked the Taxing Master’s expertise in such matters.

Senior Counsel for the defendants went on to refer to the criteria applicable for the determination of appropriate costs in any

action before the Taxing Master which were set out in Order 99, Rule 37(22)(ii) of the Rules of the Superior Courts 1986. He

pointed out that the sum total of these criteria had been succinctly summarised by Barron J. in Best v Wellcome [1996] 3

I.R.378 at page 387 where the learned judge stated:-

“Ultimately, there are only three criteria upon which the fee is determined:

(1) Any special experience of the solicitor;

(2) The amount of work done; and

(3) the degree of responsibility borne.”

Mr. Connolly submitted that both the Taxing Master and the learned High Court judge had borne these criteria in mind and

correctly employed them in the instant case.

Mr Connolly also submitted that the jurisdiction of the High Court ( and in turn this Court) to interfere with allowances made by

the Taxing Master had been considerably restricted since the introduction of Section 27 of the Courts and Courts Officers Act

1995. He referred to a number of cases where reference had been made to that section.

Mr Connolly went on to open a number of extracts from the transcripts of both hearings before the Taxing Master, which, he

argued, supported the Taxing Master in the determinations which he had made.

The Law

The modern statute law governing the matters at issue in this appeal is set out in Part VI of the Courts and Court Officers Act

1995. Section 27 sub-sections (1) and (2), as relevant to the powers and duties of the Taxing Master of the High Court,

provide as follows:

“27(1) On a taxation of costs as between party and party by a Taxing Master of the High Court...or on a taxation of

costs as between solicitor and client by a Taxing Master of the High Court, the Taxing Master...shall have power on such

taxation to examine the nature and extent of any work done, or services rendered or provided by counsel (whether

senior or junior), or by a solicitor, or by an expert witness appearing in a case or any expert engaged by a party, and

may tax, assess and determine the value of such work done or service rendered or provided in connection with the

measurement, allowance or disallowance of any costs, charges, fees or expenses included in a Bill of Costs.

(2) On a taxation of costs as between party and party by a Taxing Master of the High Court...or on a taxation of costs

as between solicitor and client by a Taxing Master of the High Court, the Taxing Master...shall have power on such

taxation to allow in whole or in part, any costs, charges, fees or expenses included in a Bill of Costs in respect of counsel

(whether senior or junior) or in respect of a solicitor or an expert witness appearing in a case, or any expert engaged by

a party as the Taxing Master...considers in his or her discretion to be fair and reasonable in the circumstances of the

case, and the Taxing Master shall have power in the exercise of that discretion to disallow any such costs, charges, fees

or expenses in whole or in part.”

Section 27 sub-section (3) deals with the power of the High Court to review the rulings of the Taxiing Master and provides as

follows:

“27(3) The High Court may review a decision of a Taxing Master of the High Court...made in the exercise of his or her

powers under this section, to allow or disallow any costs, charges, fees or expenses provided only that the High Court is

satisfied that the Taxing Master...has erred as to the amount of the allowance or disallowance so that the decision of

the Taxing Master...is unjust.”

The criteria applicable to the determination of appropriate costs in any action before the Taxing Master are set out in Order 99

Rule 37(22)(ii) of the Rules of the Superior Courts 1986. This rule deals specifically with the question of instructions fee as

follows:

“In exercising his discretion in relation to any item, the Taxing Master shall have regard to all relevant circumstances

and in particular to -

(a) the complexity of the item or of the cause or matter in which it arises and the difficulty or novelty of the

questions involved;

(b) the skill, specialised knowledge and responsibility required of, and the time and labour expended by, the

solicitor;

(c) the number and importance of the documents (however brief) prepared or perused;

(d) the place and circumstances in which the business involved was transacted;

(e) the importance of the cause or matter to the client;

(f) where money or property is involved, its amount or value;

(g) any other fees and allowances payable to the solicitor in respect of other items in the same cause or matter

but only where work done in relation to those items has reduced the work which would otherwise have been

necessary in relation to the item in question.”

These criteria, as pointed out by Mr Connolly, have been summarised by Mr Justice Barron in Best v Wellcome [1996] 3 I.R.378

at 387 as follows:

“Ultimately there are only three criteria upon which the fee is determined;

(1) any special experience of the solicitor;

(2) the amount of work done; and

(3) the degree of responsibility borne.”

This summary has been accepted and approved in later cases. The Taxing Master referred to these three criteria in his taxation

and review in the present case. In his judgment (at page 6) Geoghegan J. in the High Court stated:

“It is necessary now to examine how the Taxing Master approached this assessment of the instructions fee but above all

how he approached his own review of that taxation. It is clear that he correctly had regard to Best v Wellcome

Foundation Limited [1996] 3 I.R. 378. At that time the Taxing Master was working off the then unreported judgment of

Barron J. On the authority of that decision with which I agree there are effectively three criteria upon which the fee is

determined.”

The learned judge then lists the three criteria.

Section 27(3) of the Courts and Court Officers Act 1995 has been considered in a number of cases since its enactment. In

Smith v Tunney [1999] 1 I.L.R.M. 211 McCracken J. referring to the sub-section stated as follows:

“The principle upon which I must act, therefore us not simply to decide whether the Taxing Master erred but also, if I

am to alter his decision, I must find that his taxation was unjust. I cannot approach this issue on the basis of trying to

assess of what costs I would have awarded had I been Taxing Master.”

Kelly J. agreed with this statement in Tobin and Twomey Services Limited v Kerry Foods Limited [1999] 1 I.L.R.M. 428, as also

did Laffoy J. in Minister for Finance v Goodman (unreported 8th October 1999).

In Bula and Others v Tara (unreported 7th March 2001) I also expressly accepted the approach taken by McCracken J. and

Kelly J. in these two cases. In Superquinn Limited v Bray UDC and Others (unreported 5th May 2000) Kearns J. agreed with the

approach of Geoghegan J. in his judgment in the instant case.

In all these dicta emphasis is placed on the necessity for the Court to find that the decision of the Taxing Master is not only in

error but also unjust.

Conclusions

If the plaintiffs are to succeed in this appeal, they must establish that the trial judge in the Court below erred in holding that

the decisions of the Taxing Master on the solicitor’s instruction fee in the High Court, or senior counsel’s refresher fees in the

High Court, and/or senior counsel’s brief fee in the Supreme Court were not unjust; alternatively they must show that the

learned trial judge erred in the increase to £21,000 which he made in senior counsel’s brief fee in the High Court action.

The High Court judge’s decisions in regard to senior counsel’s brief fee and his solicitor’ instruction fee in the High Court are

inter-related. The learned judge rightly accepted the crucial importance of the case to the plaintiffs and indeed to future law

graduates of Queen’s University Belfast generally. He considered that the Taxing Master had not given sufficient weight to this

factor, and in this I would agree with him.

He also considered, as had the Taxing Master, that the case was “barrister-led”. He suggested that the case was “devised,

prepared, managed and ultimately fought by Dr. White”. Dr White in his submissions to this Court argued that this was not a

correct picture. However, the trial judge’s finding is clearly supported by the evidence given by Dr White himself before the

Taxing Master. A reading of the transcript of the hearing shows clearly the immense amount of work done by Dr White, who

claims to have devoted himself exclusively to the preparation of this case for a period of three months.

Geoghegan J. gave some weight to the fact that, as he believed, Dr White was a member of the academic staff of Queen’s

University. Dr White informs this Court that he was never a member of the academic staff of Queen’s University Belfast and the

Court of course accepts that this is so. Nevertheless he was at the material time living on a continuous basis in Belfast and he

appears to have had a relatively close connection with the university. He gave occasional lectures in the law school. As a

distinguished legal academic of the National University of Ireland he was on his own evidence known to the members of the

Faculty of the Queen’s Law School. He was at least aware of the initiation of the proceedings. The only plaintiff to give

evidence in the trial before Laffoy J., Corann King, stated that it was Dr White who initiated the proceedings and described him

as being involved in drafting a petition which was then circulated to the students and signed by them. Dr. White in this Court

asserted that she was mistaken in her evidence. Nevertheless Dr White was closely and personally involved in the preparation of

the case from the beginning and it was he who had personal contact and an unspecified number of consultations with the

plaintiffs in Belfast. This is perfectly understandable, since his solicitor, Mr O’Sullivan, was running a busy practice in Cork, but it

is nonetheless a factor to which weight must be given. Dr White denies that he provided his solicitor with witness statements

and I accept this. However, he provided most detailed advices on proofs including outlines of the evidence that needed to be

given by the various expert witnesses and, with the valuable assistance of his junior counsel, Mr Horgan, dealt with the

necessary survey of the law both in the Republic of Ireland and Northern Ireland in the light of the courses followed by the

plaintiffs in Queen’s University and of the examination criteria of the Law Society. There is no doubt that considerable credit is

due to Dr White’s commitment to his clients who in the eventual outcome succeeded in the main aim of their proceedings.

It seems to me unfortunate that Dr White in his submissions to this Court characterises what was undoubtedly an inadvertent

error on the part of the trial judge, in stating that Dr White was a member of the academic staff of Queen’s University, as being

in some way a malevolent attack on his integrity and likely to damage his reputation. I find it difficult to follow the logic of Dr

White’s position on this issue. It seems to me quite irrelevant to the questions before this Court; what is important is not the

exact position which Dr White held in Belfast (which he has not revealed to the Court) but the fact that he was in Belfast and

in contact with the plaintiffs and the Queen’s Law School.

In my view the learned trial judge had an abundance of evidence before him to enable him to reach the conclusion which he did

in regard to senior counsel’s role in these proceedings and I agree with his conclusions. As far as the actual increased figure of

£21,000 is concerned, it appears to me to be in every way reasonable, bearing in mind that costs were awarded for an eight

day hearing only and solely in connection with the Article 6 issue.

The other side of this coin, however, is the role played by the plaintiffs solicitor. During the course of Mr O’Sullivan’s evidence

before the Taxing Master the defendant’s accountant raised the question as to why the plaintiffs had instructed a Cork solicitor

when they were living in Belfast. Mr O’Sullivan explained that he had offered to take on the case in conversation with a member

of the academic staff of Queen’s whom he had met at a social function. Mr O’Sullivan was well accustomed to working with Dr

White and Mr Horgan; he instructed them regularly, particularly in judicial review cases. However, the fact that he was in Cork

and his thirty five clients were in Belfast meant that he had little actual contact with them. He attended one consultation in

Belfast in December 1994; on his evidence to the Taxing Master he had never been in Northern Ireland before and suffered

considerable fears as to the dangers he might, as a citizen of the Republic of Ireland, face once he crossed the Border. He

subsequently met a number of the plaintiffs in Dublin when they attended a preliminary application to the High Court, but it is

clear that he did not bear the normal burden of repeated consultations with plaintiffs which would have arisen in a case of this

complex nature.

Bearing in mind the three criteria set out by Barron J. in Best v Wellcome, I accept, as did Geoghegan J., that Mr O’Sullivan did

a large amount of work in this case, a major proportion of which was done at the direction and under the supervision of Dr

White. In his evidence to the Taxing Master Mr O’Sullivan himself was somewhat vague as to the exact number of hours of work

he had put in over the period and he does not appear to have kept accurate records which would have assisted the Taxing

Master in reaching a conclusion as to the proper level of fee.

It does not appear that Mr O’Sullivan himself had any special expertise in the areas of law which were dealt with in the

proceedings and while he undoubtedly bore considerable responsibility in the case, the lion’s share of the responsibility in the

preparation, management and running of the case was, on the evidence, borne by Dr White.

At page 6 of his judgment Geoghegan J. refers to a passage from the Taxing Master’s review of the taxation which he quotes as

follows:-

“At the conclusion of the submissions upon hearing of the objections I was of the opinion that the proper and only way

to determine a fair and reasonable instruction fee in relation to the work that the case necessitated was to exercise the

powers conferred on me in Section 27(1) and (2) of the Courts and Court Officers Act 1995. The provisions of these two

sub-sections are already set out in detail earlier in this ruling and I do not propose to repeat them. The said Act bestows

on the Taxing Master a right to examine the nature and extent of the work carried out by counsel and solicitor and to

determine the value of that work in relation to the case. It does not preclude the Taxing Master from following and using

the well established legal principles and criteria in this area. This Act gives the Taxing Master in carrying out such

examination an insight into the work undertaken and done by the solicitor and to take into account the complexity of the

case, the difficulties and novelty of the issues involved. It also permits him to examine the time and labour expended,

the extent and volume of the documentation involved and indeed the importance of the cause or matters of the

clients.”

The learned High Court judge approves this passage and concludes at page 8 of his judgment that there was nothing in any of

the evidence to suggest that an instruction fee of £76,000 was unfair or unreasonable and he affirmed the determination of the

Taxing Master. In my view he was correct in that conclusion.

In dealing with the level of refreshers allowed by the Taxing Master, senior counsel for the plaintiffs asserted that each of the

two senior counsel for the defendants had marked refreshers of £2,000 per day. He submitted that he should therefore have

been allowed a refresher equal to the sum of these - in other words £4,000 per day.

In considering this matter the trial judge asked in Court whether there was precedent for any refresher in High Court litigation

being allowed on taxation at a higher figure than the £3,150 determined by the Taxing Master. He was not presented with any

such precedent. He went on to state:

“In a complex High Court action the complexity should normally be reflected in the main in the brief fee rather than in

the refresher as it is the brief fee which covers the preparation for the case. However, in this particular case there

were a great deal of matters which had to be freshly to as the case progressed. The day to day running of the case

was obviously extremely difficult and I think that in all the circumstances the Taxing Master was correct in increasing

the refresher fee to £3,150 but I do not see any justification for making it any higher.”

In my opinion Geoghegan J. gave proper weight to the factors involved in determining the level of refreshers, and I see no

reason to disturb his conclusion.

In dealing with the level of senior counsel’s brief fee in the Supreme Court Geoghegan J. pointed out that the substantive issues

in the case were not really addressed in the Supreme Court except insofar as they related to the procedural matter of the form

of relief which should be granted in the order and the question of costs. He concluded that the brief fee in the Supreme Court

was therefore not related to the brief fee on the hearing of the action. He could find no error in principle or otherwise and no

element of injustice in the fee of £10,000 allowed by the Taxing Master. I agree with his conclusions.

In the light of the conclusions set out above I would therefore dismiss the plaintiffs appeal.

Two matters, however, remain to be mentioned. The first is that in both his written and his oral submissions to this Court senior

counsel for the plaintiffs raised the question of the solicitor’s instruction fee in the Supreme Court as determined by the Taxing

Master. He argued that this fee was so low as to be unjust. It is difficult to understand how this matter arose before the Court

in any shape or form. The solicitor’s instruction fee in the Supreme Court was not dealt with in any way by the High Court in its

review of the taxation. It is mentioned neither in the High Court Order of the 3rd December 1999 nor in the Notice of Appeal.

Clearly it forms no part of the appeal that is before this Court and the fee which was fixed by the Taxing Master must stand.

The second matter gives rise to more difficulty. The written submissions to this Court made on behalf of the plaintiffs contain a

number of allegations against the trial judge. Firstly it is stated that he unjustly accused senior counsel for the plaintiffs of

professional misconduct. This allegation is completely unfounded. The learned trial judge specifically stated at page 10 of his

judgment “there has been no suggestion here of unprofessional conduct”.

More seriously, it is alleged that the learned judge was “compromised” in trying the case because one of the senior counsel

acting on behalf of the defendant was his wife. Dr White embarked upon again raising this allegation in oral argument. The Court

was then informed by Mr Connolly, senior counsel for the defendant, that at the commencement of the trial Geoghegan J. had

specifically asked whether, on account of Ms Finlay’s participation, any party objected to his trying the case. He was happy to

transfer the matter to another judge. He was assured by all parties, including counsel for the plaintiffs, that no such objection

arose.

It appears that Dr White did not act for the plaintiffs in the Court below and was not himself a party to this exchange of views.

However, it is difficult to believe that he was not made aware of it; for example, his present junior counsel, Ms Seligman, also

acted as junior counsel for the plaintiffs in the Court below.

In the circumstances the making of such totally unfounded allegations against the learned trial judge must attract the strongest

disapproval from this court. The situation was rendered even more distasteful by the fact that, while Dr White in this Court

accepted Mr Connolly’s account of what had transpired in the Court below, he went on to argue that his clients were not bound

by their then senior counsel’s failure to object to the trial judge. In the circumstances where the learned trial judge had

expressly asked counsel if there was any objection to his trying the case, and where counsel for the plaintiff indicated that no

such objection existed, it was extraordinary conduct on behalf of Dr. White to raise the matter on the appeal. There is no

question of the learned trial judge being compromised.