Supreme Court dismisses appeal holding Taxing Master's discretion to award objection costs survives the 1995 Act.

Keane C.J.

Murphy J.

Geoghegan J.

273/00

THE SUPREME COURT

BETWEEN/

F. GERARD

M. GANNON

Applicant/Respondent

and

TAXING MASTER JAMES FLYNN

Respondent/Appellant

and

BERNADETTE MULLEN

Notice Party

Judgment of Mr. Justice Geoghegan delivered the 4th day of October 2001

This is an appeal from an order of the High Court (Laffoy J.) made on the 11th of May 2000 quashing, by way of certiorari, an

order of the above-named Taxing Master, Mr. James Flynn, awarding to the notice party the costs of objections to a taxation in

connection with a High Court order for costs in favour of the notice party against the above-named applicant/respondent who

is himself a solicitor. The notice party elected to play no part in the proceedings and the appeal has been brought by the said

Taxing Master.

The background to this judicial review proceeding has been admirably summarised by the learned High Court judge at the

commencement of her judgment. It is not necessary to reset out the factual background in this judgment as what is involved in

this appeal is a single net point of law involving essentially the true construction of section 27(6) of the Courts and Court

Officers Act, 1995.

The Taxing Master had awarded the costs of the objections in purported pursuance of a discretion given to him in that behalf

by O. 99, r. 38(2) of the Rules of the Superior Courts 1986. That sub-rule reads as follows:-

"The Taxing Master may, if he thinks fit, tax the costs of such objections and add them to or deduct them from any

sum payable by or to any party to the taxation."

The net question which arises however is whether that discretion given to the Taxing Master by the Rules of the Superior

Courts was abolished by the terms of section 27(6) of the Courts and Court Officers Act, 1995. That subsection reads as

follows:-

"Without prejudice to the provisions of O. 99, r. 29(12) and (14) of the Rules of the Superior Courts 1986 or without

prejudice to any enactment regulating the charging of fees payable in the Taxing Master's Office on the taking up of a

certificate of taxation on the taxation of a bill of costs (whether on a solicitor and client or party and party basis) no

solicitor or legal cost accountant or other cost drawer shall be entitled to any fees, disbursements, charges or expenses

in relation to the taxation of costs as against the opposing party, but save as against the party who incurred such fees,

disbursements charges or expenses."

O. 99, r. 29(12) permits the Taxing Master to allow a solicitor attending to oppose the taxation of costs, otherwise than as

between party and party, proper charges for his attendance and sub-rule (14) of the same rule permits the Taxing Master in

cases of special difficulty and importance involving questions of principle to allow as part of the costs of taxation the expenses

of counsel appearing before him. These two provisions saved by section 27(6) are clearly of no relevance to the issues involved

in this case. It is perfectly clear that subject to those savings no solicitor or legal cost accountant or other costs drawer is now

to be entitled to any fees, disbursements, charges or expenses "in relation to the taxation of costs as against the opposing

party". The subsection could not be clearer. The only conceivable ambiguity that could arise is whether costs of an objection

are costs "in relation to the taxation of costs". If they are, then that is the end of the matter and quite obviously the order

made by the Taxing Master was made without jurisdiction. The subsection is not open, in my view, to any construction which

would make a distinction between an alleged right to costs on the one hand and a discretion conferred on the Taxing Master by

the rules on the other.

The learned High Court judge expressed the view in no uncertain terms that it would be absurd to suggest that the objections

were not part of the taxation process and that the subsection only applied to the original stage of the taxation before the

objections were carried in. The trial judge arrived at this view primarily on an interpretation of subsection (6) but she also called

in aid subsection (7). I will return to deal with subsection (7). In my view this case can and should be determined exclusively by

reference to subsection (6). I am not satisfied that subsection (7) is in any way relevant.

In the mind of the learned High Court judge the relevance of subsection (7) arose because she considered that the taxation of

costs was potentially, at least, a tripartite process. There was first of all the ordinary procedure before the Taxing Master for

the initial taxation of the costs. That was the first stage. There was then the right on the part of an aggrieved party to carry in

objections so that the Taxing Master could reconsider items complained of. Quite rightly, the learned High Court judge

considered that that was a second stage of the taxation but part and parcel of the taxation. If, following on the rulings on the

objections the aggrieved party was still not satisfied, there was then the procedure for a review by the High Court and the

learned High Court judge considered that that was a third stage of the taxation. I would take issue with her on that point. I

agree that potentially there are three stages in the taxation of costs but the third stage is not the actual review before the

High Court, which after all is not a taxation but a review of taxation. The third stage is the final procedure under O. 99, r. 38(6)

whereby after the determination by the High Court the matter has to be remitted to the Taxing Master to complete the taxation

in accordance with the decision of the court and to issue a final certificate of taxation. It is only when that certificate has been

finally drawn up that the taxation comes to an end. It is not, therefore, open to argument that the power of the Taxing Master

to award costs under O. 99, r. 38(2) survived section 27(6) of the 1995 Act. As the learned High Court judge points out the

final words in the subsection "but save as against the party who incurred such fees, disbursements, charges or expenses" are

not really necessary and must have been included as she said "ex abundanti cautela". It is just about conceivable that if those

words had not been included, some client might have tried to argue that the statute prevented his solicitor charging him for the

costs for which otherwise he would be liable as a matter of ordinary contract.

The learned High Court judge invoked in aid of her construction of section 27(6) subsection (7) of the same section also. That

subsection reads as follows:-

"On a review of taxation (whether on a solicitor and client or party and party basis) by the High Court, or the Circuit

Court, no solicitor or legal costs accountant or other costs drawer retained to present the bill of costs to the Taxing

Master or a County Registrar shall be entitled to be paid any fees, disbursements, charges or expenses for his or other

attendance in court to give evidence in relation to the bill of costs, save as against the party who incurred such fees,

disbursements, charges or expenses."

I have already expressed the view that the procedure in the High Court is not part of the taxation as such but rather is a

review of the taxation and the taxation has to be completed by the Taxing Master in accordance with the decisions of the High

Court made on that review. I do not agree that subsection (7) was merely an equivalent of subsection (6), the former dealing

with stages 1 and 2 of the taxation and the latter with stage 3. But there is a further reason why I would not be happy with

that analysis. Subsection (7) is not dealing with the costs of the solicitor appearing on the review before the High Court as

such, but rather with the costs of either that or any other solicitor or legal costs accountant or costs drawer attending the

court to give evidence. I think it important to make this clear in case it should be suggested that on foot of the analysis of the

learned High Court judge, the High Court was no longer entitled to award costs in a review of taxation. For both reasons

therefore, I am of opinion that subsection (7) is dealing with a different matter and cannot be invoked in aid for the purposes of

interpreting subsection (6). On the plain words of subsection (6) it seems clear to me that this appeal should be dismissed.

There is just one rider which I would like to add. Nothing in this judgment is to be taken as expressing any view whatsoever as

to whether there could be exceptional circumstances in which the court itself, as distinct from the Taxing Master, might be

entitled to award and measure costs in favour of a particular party against another party in relation to any particular stage of

the taxation.