In Brehony v. Longford Westmeath Farmers Mart Limited [2019] IECA 60 the Court of Appeal held that a High Court Judge was in error in holding that there was no error in principle in the Taxing Master using an instruction free to "equalise" an Attendance Fee which was provided for in the Rules of the Superior Courts.

The matter was remitted to the Taxing Master to reconsider the proper level of fees in a way which does not include an Attendance Fee of €3,000 claimed on three separate occasions for travelling to Dublin to attend at a Personal Injuries action which didn't get on and eventually settled.

Background

In taxation, solicitors are entitled to claim costs for some discretionary and non-discretionary items. They are also entitled to claim an instruction fee encompassing their work on the case. Generally the Taxing Master will apply the "great equaliser", meaning they take the items claimed for (both discretionary and non-discretionary) and look at the instruction fee and then come to a global figure that they feel represents the equitable fee for the work undertaken by the solicitor. It should be noted that those discretionary and non-discretionary items which are provided for in Appendix W of the Rules of the Superior Courts are generally thought to be out of date. Therefore, the practice has been to compensate practitioners for this by bumping up the instruction fee to cover the shortcomings.

After a dispute arose in this case concerning the fairness of allowing solicitors from Longford claim €3,000 on three separate occasions for travelling to Dublin to attend at a Personal Injuries claim which didn't get on and eventually settled, the High Court found that insufficient inquiry had been made into the €3,000 per diem figures and remitted the case to the Taxing Master.

Court of Appeal

On appeal the Court of Appeal held that the High Court Judge was not entitled to operate on the basis that those per diem figures should be included in the instruction fee since they are provided for in Appendix W at a rate of 20.27 per day. In other words the instruction fee could not be regarded as the "great equaliser" to compensate the solicitors for their attendance at court where those expenses were already provided for (at a rate completely out of sync with modern legal practice it must be said). The Court also noted that it was for the Rules Committee to change these rates within the Rules rather than the Court to permit this ad hoc practice of permitting instruction fees to cover a multitude of works without those works being properly broken down and accounted for.

There is provision within the rules to allow for special higher amounts but the Court was quick to point out that this was by no means a special case and again there was a clear reluctance for the practice of equalising to continue to be the custom.