The Court of Appeal has allowed an appeal over the assessment of a solicitor’s instruction fee in a medical negligence case, sending the matter back to the Taxing Master for a fresh assessment.
The court directed the claimant’s costs accountants to prepare a new bill setting out, as fully as possible, the time and labour spent by the solicitors. The Taxing Master must then assess the bill using the method set out in the judgment. The appeal court did not determine a new fee.
The infant claimant had suffered catastrophic birth injuries and developed cerebral palsy following the defendant consultant obstetrician’s admitted negligence. Her damages claim settled during a five-day High Court hearing in October 2011 for €1.9 million on an interim basis, pending legislation on periodic payment orders. The judgment said the claim’s full capital value was estimated at about €8 million.
The claimant’s solicitors sought an instruction fee of €485,000. The defendant’s cost accountants argued for €250,000. The Taxing Master allowed €276,000. After an unsuccessful High Court review, the solicitors appealed.
The appeal court found that the bill of costs did not provide a clear account of the work, who performed it, how long it took or the charge for each service. The solicitors had detailed time records for only the final months before trial, and their estimates of total hours varied. The court said the Taxing Master should have required a compliant bill and accepted a reconstruction of the earlier hours, then assessed the work and charges before considering factors such as complexity and case importance.
The court also ruled that the costs of two senior solicitors attending the trial should be recoverable on a party-and-party basis, given the difficult damages assessment and simultaneous settlement negotiations. It rejected the challenge over alleged overhead differences, and found no injustice in the Taxing Master’s treatment of comparators. It said alleged profits in unrelated cases were irrelevant to the fee assessment.
The court said the Taxing Master had erred in his approach to time and in applying an overall reduction for economic conditions. It allowed the appeal and remitted the matter for renewed assessment. The judgment did not itself decide the amount of the instruction fee.