The Court of Appeal has ruled that a solicitor’s attendance fee for days when a case was listed but not reached could not be added again to the instruction fee in the costs assessment of a personal injury action.
The decision, delivered on 4 March 2019 by Mr Justice McGovern, allowed an appeal by Longford Westmeath Farmers Mart Limited. The court set aside the basis on which the High Court had sent the costs assessment back to the Taxing Master and ordered a fresh reconsideration of the instruction fee without any figure for the solicitor’s attendance.
The underlying claim was brought by Michael Brehony, who sought damages for injuries sustained on 1 November 2001 while working for the company at its mart in Ballymahon, County Longford. The case was listed for hearing in the High Court in February 2010 but was not reached on three listed days. It settled for €35,000, with High Court costs, including reserved costs, to be taxed if the parties could not agree.
At taxation, the Taxing Master allowed €3,000 per day for the solicitor’s attendance on those three days within the general instruction fee. That fee had been claimed at €28,000 and assessed at €21,000. The Taxing Master also allowed the scheduled attendance amount under Items 23 and 24 of Appendix W to the Rules of the Superior Courts for each day the case was in the list but not reached.
The High Court had found errors in the explanation and proportionality of the €3,000 daily allowance, but concluded the instruction fee could include an attendance figure. It remitted the assessment to the Taxing Master.
The Court of Appeal held that this approach was wrong. Items 23 and 24 already provided for attendance fees, while the instruction fee covered work not otherwise provided for. The court said the outdated scale did not itself create a “special case” allowing the scheduled fee to be increased through the instruction fee. It also described the €9,000 added for three days as disproportionate to the €21,000 instruction fee allowed in what it characterised as a routine personal injury case settled for €35,000.
The appeal court’s order was limited to the costs assessment: it remitted the instruction fee to the Taxing Master for reconsideration on a basis that excludes any solicitor attendance fee. The judgment did not revisit the underlying settlement.