The Gazette 1974

think should be acted on and I am prepared to enforce is this—that if a solicitor, acting bona fide within the rule I have above stated, delivers a brief with the fee marked thereon to counsel, prima facie that fee ought to be allowed, even in party and party costs; otherwise the solicitor must be exposed in every case to the risk of having to pay out of his own pocket money which he honestly and bona fide paid to his counsel, unless he has. taken the precaution of fixing the fee beforehand with his client." Because these items are disbursements made by a solicitor in the course of his practice m respect of fees to counsel retained by him on his client s behalf the amounts of the disbursements should be assessed on the basis of what a practising solicitor who is reasonably careful and reasonably prudent would consider a proper and reasonable fee to offer to counsel. This standard does involve having due regard to the changes in what the practising solicitor considers to be reasonable derived from his day-to-day and year-to- year experiences in the course of his practice. The principle for so long proposed by the Courts to the Taxing Masters is that they should have regard "to the magnitude of the case and the nature of the questions involved in it' • As stated in a much-quoted extract from the judgment of Kenny J. in delivering the judgment of the Court of Kings Bench Division in Barry v. Spaight and Sons, 1904, 2 I.R. 478, at 486, the Court will interfere with the decision of the Taxing Master "if the Court comes to the conclusion that he has failed to adequately recognise the gravity, perplexity, and difficulty—in other words, the magnitude of the case". This statement of principle was adopted by the Supreme Court in both the dissenting judgment of Maguire C.J. and the judg- ment of the Court delivered by O Dalaigh J. in the Attorney-General v. Simpson (Number 3), 1963, I.R- 329. But it appears evident to me from these judg- ments in Simpson's case that this principle is intended as an indication of the factors affecting the judgment of a solicitor in practice in determining what would be a reasonable fee to offer to counsel. To construe this statement of principle as an indication to the Taxing Master as to how he should determine by reference to the nature or value of the work required of counsel the amount of the fee to be paid to counsel is quite erroneous in my view. The effective purpose of this principle is to guide the practising solicitor in the selec- tion of counsel competent in the field of work to which the brief relates and in the determination of the fee which such a counsel would be content to take. Put in another way the solicitor in the course of his practice would estimate the fee which, having regard to the principle stated, counsel appropriate to the brief would be content to take for that brief. Authority for this concept of the "hypothetical counsel" who would be capable of conducting the particular case efficiently and who would not demand a particularly high fee because of his special reputation or other extraneous reason i s to be found in Simpson's Motor Sales (London) Limited v. Hendon Corporation (Number 2), 1965, 1 W.L.R- 112. Since the adoption of the present rules of the Supe- rior Courts governing taxation of costs the Court is no longer confined upon a review of a taxation of the Taxing Master to circumstances involving an error in principle on the part of the Taxing Master. This has been demonstrated in the very careful analysis of the present rules as compared to the former Supreme Court

tion of whether to make disallowances the Taxing Master should have regard to (a) the amount of work involved for counsel including the presentation of the case and his barristers as to marking fees insofar as accepted by solicitors in practice. He suggested that the scales of fees adopted by the Bar for High Court and Circuit Court work were a matter of personal considera- tion by the Taxing Master as also the fees paid to the Counsel for the opposing party in the same matter sub- ject to whatever factors might be special to the case. Mr. O'Shaughnessy contended that the fee payable to Counsel prima facie is a solicitor and client item and therefore recoverable by the solicitor from his own client. He suggested that the client might recover from the opposing party against whom the order for costs has been made a contribution only towards his costs of such amount as the Taxing Master in his discretion might allow. He submitted that the only matters for consideration of the Taxing Master in the exercise of such discretion are the importance of the case and its difficulty. Having regard to the decision of Budd J. in re Kevin J. Walshe, 96 I.L.T.R. (1962), 173, I came to the con- clusion that it was desirable that I should have heard the evidence of the nature which had been given to the Taxing Master on the taxation and on the hearing of the objections. I considered also that only so much of the evidence of Mr. Conor Ryan as conformed with the evidence given by Mr. Kevin White in relation to mat- ters upon which he had given evidence before the Taxing Master might be considered by me. In my view any evidence which enables the Taxing Master to exer- cise his discretion in conformity with the standards of the practising solicitor who is reasonably careful and reasonably prudent, without erring on the side either of over-caution or of excess is pertinent and admissible. The discretion invested in the Taxing Master is of a judicial nature and accordingly should be exercised by him without any element of predetermination or rule of thumb or indeed any arbitrary or capricious determ- ination. The standard set for him throughout the rules in Order 99 of the Superior Court Rules and in the many decisions of the Courts which emphasise his qualifications for the function of his office are the standards of the practising solicitor. During the hearing of this application I had occasion more than once to point out that neither the Taxing Master on the taxation of the costs, nor this Court on the review of the taxation, was in any way concerned with the determination of the fees to which counsel might be entitled, nor with an assessment of the amount of the fee which counsel might require to be paid. It is no part of the function of the Taxing Master on taxation of the costs nor of the Court on a review of the taxation to examine the nature or quality of the work done by or required of counsel, nor to assess by measurement of fees the value of counsel's work. The sole matter with which the Taxing Master is concerned in respect of the items the subject matter of this application is whether to allow in whole or in part disbursements made by the solicitor in the course of his practice in respect of fees to counsel retained by him in the action in accor- dance with the rules relating to party and party taxa- tion. The significance of the fact that these items are disbursements made by the solicitor is underlined in the frequently quoted passage from the judgment of O'Sul- livan M .R. in Robb v. O'Connor, I.R. 9 Eq. 373, in which he says at page 380 : "The principle which I

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