The Supreme Court has discharged the Court of Appeal’s order and remitted a solicitor’s costs assessment to the Taxing Master, directing a fresh assessment of the plaintiff’s general instructions fee. The Court also directed reassessment of the 2011 allowance and the court attendance element, and said the plaintiff could submit a retrospective time reconstruction for part of that year.
The appeal arose from costs in a personal injuries action brought by Isabelle Sheehan, an infant suing through her mother and next friend, Catherine Sheehan, against consultant obstetrician David Corr. Negligence in the management of the mother’s ante-natal care had been admitted in the underlying proceedings, while causation remained disputed until shortly before the hearing. The action settled on an interim basis for €1.9 million in 2011; the Supreme Court was told it ultimately settled for €11.5 million.
The High Court had ordered the defendant to pay the plaintiff’s costs, to be taxed if not agreed. The plaintiff’s bill claimed €485,000 for the general instructions fee. The Taxing Master allowed €270,000, later increasing it to €276,000 after objections. The High Court affirmed that decision. The Court of Appeal allowed the plaintiff’s appeal and ordered a renewed assessment, finding errors concerning time, the treatment of two senior solicitors, and economic conditions.
In a judgment delivered by Ms Justice Laffoy on 15 June 2017, the Supreme Court held that the Court of Appeal’s required methodology was not in accordance with the governing costs rules. Time spent is relevant, but should not be elevated above the other criteria. The rules did not require solicitors to keep time records or to itemise a separate charge for each task within the general instructions fee. A Taxing Master may allow or direct retrospective time reconstruction, using discretion and considering the circumstances of the case.
The Supreme Court did not uphold the Court of Appeal’s finding that the Taxing Master had erred generally by not allowing or seeking retrospective reconstruction. It nevertheless found the 2011 assessment difficult to reconcile with a fair and reasonable approach, including because the Taxing Master’s reasons did not make clear how recorded and estimated work had been valued. The Taxing Master was therefore directed to reassess the 2011 allowance and court attendance, and may decide whether reconstruction should be sought for earlier years.
The Court confirmed that a Taxing Master has discretion to disallow costs for two solicitors, subject to the statutory requirement that the decision be fair and reasonable. It concluded that the court attendance allowance should be reconsidered in light of the two-solicitor issue. Economic conditions are relevant to valuing legal work, but their impact must be assessed using appropriate evidence.
The Supreme Court’s order remitted the costs assessment; it did not set a final revised fee.