The High Court directed DePuy International Limited to pay €150,000 on account of Michael Brennan’s legal costs, within 21 days after receiving a formal or final bill of costs from his solicitor. The order does not determine the amount of costs Brennan will ultimately recover, which remains for taxation by the Taxing Master.
Brennan settled his negligence action against DePuy and the Health Service Executive in December 2015 for €235,000 and costs. The settlement was reached with DePuy and included reserved and discovery costs and mediation costs, with costs to be taxed if the parties could not agree.
His updated bill claimed €442,585.52, including VAT. The parties’ costs accountant’s response offered substantially less for several legal fees, including €62,000 for the solicitor’s professional fee, compared with the €140,250 claimed before VAT. The defendant also disputed fees for two senior counsel and a junior counsel.
Brennan’s counsel argued that the case was complex and the first of its type to be opened before a court in Europe. Counsel also said the defence included the “state of the art” defence under the Liability for Defective Products Act 1991, requiring review of scientific and medical literature. They argued the claimed fees, including retaining a second senior counsel, could be allowed on taxation. DePuy’s solicitor said the plaintiff’s firm had handled many similar cases and offered €100,000 as an interim payment.
Mr Justice Barr said he could not assess the appropriate professional or counsel fees, or decide whether the second senior counsel’s fees should be allowed, without evidence. Those questions belonged to the Taxing Master. He said the court’s task was to set a substantial interim sum while avoiding significant overpayment risk.
The judge also noted that DePuy had paid €500,000 to Brennan’s solicitor in August 2016 to be credited across cases where the firm’s clients had obtained costs orders. Of that sum, €23,750 plus VAT was applied to this case.
The court said a formal bill had not yet been served and that Brennan was responsible for pursuing taxation. It fixed the interim payment at €150,000, stressing that the eventual taxed costs could be higher or lower.