The High Court has questioned the assessment of solicitors’ fees in two successful constitutional detention cases, but has not yet decided whether the costs disputes should return to the Taxing Master or be determined by the court.
The cases concerned applications under Article 40.4.2 of the Constitution by Foufik Ben Mohamed and Keith Caffrey. The court had previously found their detention unjustified and ordered their release, with the respondent in each case to pay their costs, subject to taxation. Those release orders were made in June and July 2005.
The present proceedings were brought by the prison governors to review the Taxing Master’s assessment of the solicitors’ instruction fees. The fee claimed in Mohamed’s case was €14,000, and the Taxing Master allowed €9,500. In Caffrey’s case, the initial claim was stated as €14,402, with €9,000 allowed. A later ruling records the claimed amount as €13,150. The judgment does not explain that difference.
The State argued that the instruction fees were excessive given the limited work, short hearings and absence of a contest. It said the cases were not unusually complex or novel and that the time spent by the solicitors—estimated at eight to ten hours in Mohamed and about nine hours in Caffrey—should inform the assessment.
The applicants’ submissions challenged what they described as a blanket approach to the cases and emphasised the responsibility involved in urgent applications concerning liberty. The Taxing Master had earlier characterised the cases as counsel-driven, then later concluded that the solicitors and counsel had worked to a similar extent.
In reviewing the assessments, the High Court said parts of the Taxing Master’s reasoning appeared to treat Mohamed’s Article 40 application as an asylum judicial review. It also questioned the basis for the changed assessment of the lawyers’ respective contributions, particularly in the absence of detailed task and time records. The court said the Taxing Master had acknowledged that the available material did not permit a “root and branch” examination of the work.
The judge said time spent could be a determining factor under the costs rules and found that the agreed estimates of time should have been taken into account, especially where the cases had been treated as counsel-driven. The court was reluctant to interfere with the Taxing Master’s discretion but considered that there were inconsistencies in the determinations.
The judgment ends by directing that counsel be heard on whether the matters should be remitted to the Taxing Master or decided by the court. It does not make a final determination of the instruction fees or the costs of the review proceedings.