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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Minister for Finance v. Flynn (Taxing Master) [2003] IEHC 122 (31 July 2003) URL: http://www.bailii.org/ie/cases/IEHC/2003/122.html Cite as: [2003] IEHC 122 |
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Minister for Finance v. Flynn (Taxing Master) [2003] IEHC 122 (31 July 2003)
1996 No. 65MCA
BETWEEN/
APPLICANT
RESPONDENT
Judgment of Mr. Justice Herbert delivered the 31 day of 7, 2003.
The Tribunal of Inquiry into the Beef Processing Industry was established to investigate, amongst others, allegations made in Dáil Éireann by Deputy Tomás MacGiolla and Deputy Patrick Rabbitte of very serious irregularities said to be occurring in that vital national industry. The allegations of illegal activities, fraud and malpractice made by these Dáil Deputies are set out at page 25, paragraph 6 of the Report of the Tribunal as follows:-
(i) Abuses of the system under which subsidies are paid by the European Economic Community to those engaged in the beef processing industry.
(a) Maintenance of an entire production line in Nenagh designed for taking stamps from frozen carcases and re-stamping and re-packing them, - made by Deputy Pat Rabbitte on the 15th May, 1991;
(b) Change of labels on meat in different parts of the country by a team moving about to do this job on behalf of Goodman companies, - made by Deputy Tomás MacGiolla on the 9th day of March, 1989;
(d) Attempted use of South African Customs stamps to defraud the Department of Agriculture which resulted in the conviction of a close aide of Larry Goodman who was found in possession thereof, made by Deputy Dick Spring on the 15th day of May, 1991 and by Deputy Pat Rabbitte on the 28th August, 1990.
(e) Illegal labelling of meat carcases in the Eirfreeze factory in the North Wall by changing labels and dates of slaughter on meat which resulted in the shut down of the plant by Inspectors from the Department of Agriculture and Food, made by Deputy Tomás MacGiolla on the 9th March and on the 15th day of May, 1991;
(f) Carrying out grotty repackaging and restamping operations in Goodman plants in operations heavily subsidised by the Irish taxpayer, thereby putting Ireland's reputation for quality at risk, - made by Deputy Pat Rabbitte on the 24th May, 1991.
(g) Engaging in a Carousel operation, - made by Deputy Pat Rabbitte on the 24th May 1991.
(ii) Failure of regulatory authorities and allegations of political influence in relation to alleged abuses of the system.
(f) The Department of Agriculture and Food and prosecuting counsel seemed very reluctant to pursue the charges against Eirfreeze and AIBP with any vigour, on the 30th July, 1990 and in particular the issue of fraud and forgery about which the Garda were not informed, made by Deputy Tomás MacGiolla on the 15th day of May, 1991.
(h) There was official indifference to the climate of fraudulent practises that characterised the Goodman group. According to one public official, the whole ethos was "do not interfere, do not make trouble, this man is doing a great job". If you hoped to be promoted the last thing you wanted to do was start shouting foul at Larry Goodman – made by Deputy Rabbitte on the 15th day of May, 1991.
(iii) Tax evasion and Political influence in regard thereto.
(a) A great many Goodman workers were on the dole and were being paid under the counter, made by Deputy Rabbitte on the 15th May, 1991.
(b) Because of Goodman's political connections, the Revenue Commissioners turned a blind eye to the type of "remuneration packages" enjoyed by senior executives and a non-return of PAYE and PRSI to the Exchequer for many workers because of the operation of the contract system for a large proportion of the Goodman workforce – made on the 28th August, 1990 and repeated on the 15th May, 1991 by Deputy Pat Rabbitte.
(c) In the Finance Act, the Government made a special arrangement to enable Mr. Goodman to avail of high coupon finance (in respect of Section 84 loans) to fund speculative ventures abroad, made by Deputy Pat Rabbitte on the 15th May, 1991 and because of its use outside the State to fund speculative ventures, it amounted to tax evasion warranting prosecution.
(iv) Goodman, the Industrial Development Authority and political influence.
(a) The Goodman organisation was chosen as the hub around which Fianna Fáil had built its development policy for the food industry, including beef, dairying and sugar. Government funding commitments to him of between £200 and £20 million in 1987 had given him "tremendous credit" in raising finance wherever he wished to go and he had also received IDA grants of up to £25 million. The Taoiseach himself directly intervened with the IDA to drop the performance clause in the case of grants to the Goodman Company, made by Deputy MacGiolla on the 9th day of March, 1989.
(v) Abuse of Export Credit Insurance Scheme
The allegations in regard to this aspect of the Inquiry were made by Deputy Desmond O'Malley, Deputy Pat Rabbitte and Deputy Dick Spring and may be summarised as follows:-
(d) The decision taken in 1987 by the Fianna Fáil Government to reinstate Export Credit Insurance was taken against the best professional advice available to the Government, made by Deputy Dick Spring on the 28/8/1990 and reported on by him on the 15th May, 1991 and by Deputy Pat Rabbitte on the 24th May, 1991.
(f) Conscious decisions were taken to give one conglomerate (Goodman) more than 80% of the available cover in that market, disadvantaging rivals and exporters in other products, made by Deputy Rabbitte on the 24th May, 1991.
(g) The granting of Export Credit Insurance was a political decision and depended on whether "you were a member of the club" and Mr. Goodman, when he heard that Halal had been granted a slice of the Export Credit Insurance, intervened with the Taoiseach who caused the Minister for Industry and Commerce, Albert Reynolds, T.D., to cancel the allocation of such insurance and to inform the Chief Executive of Halal, made by Deputy Rabbitte on 15th May, 1991.
(vi) allegations of Political Influence.
In addition to these set forth herein, further allegations were made in Dáil Éireann as follows:-
(a) The extraordinary recall of the Dáil and Seanad in August 1990 had as much to do with the integral link between Fianna Fail and the Goodman organisation as it has with protecting a key Irish industry; made by Deputy Rabbitte on the 28th day of August, 1990.
(b) The Companies (Amendment) Bill, 1990 represented only Goodman's third choice proposal, arising from meetings held with the Taoiseach, the first being a £300 million rescue package which Mr. Goodman demanded the Government should underwrite, the second involving an approach by Mr. Goodman's friends in Cabinet to the EC Commissioner, Mr. MacSharry in an attempt to persuade him to bring forward an EC plan that would be of similar assistance to Mr. Goodman but which would be cosmetically packaged as being in the interest of the total industry; made by Deputy Rabbitte on the 28th August, 1990 and repeated on the 15th May, 1991.
(c) Goodman successfully intervened with the Taoiseach to cause the Government to reverse a decision to increase the budget to be given to CBF the meat marketing board, in 1988, in order to shut out the prospect of markets being expanded for his competitors, made by Deputy Rabbitte on the 25th October, 1990.
(e) There was political interference in the work of Agricultural Officers and Customs men in attempting to investigate suspected breaches of EC regulations; made by Deputy Pat McCartan on the 24th February, 1988 and by Deputy Tomás MacGiolla on the 9th March, 1989.
(f) It has been suggested that Goodman was subjected to a lesser degree of Customs inspection than other commercial operations (especially in regard to container loads going North) and that he was able to virtually close off the port of Greenore to other people when he was exporting meat: made by Deputy Rabbitte on the 15th day of May, 1991.
(g) Goodman had been allowed to "cherry pick" the best of the ICC property portfolio, because he was on the "inside political track" before any other party became aware of these properties; made by Deputy Pat Rabbitte on the 28th August, 1990.
(h) Knowing the inside political track had enabled him to get access to exceptional lines of credit and to benefit from risky but profitable Middle East contracts, confident in the knowledge that he was guaranteed by the Government so long as Fianna Fáil remained in power: made by Deputy Pat Rabbitte on the 28th August, 1990.
(i) Fine Gael's attitude to Goodman was uncommonly acquiescent, a consideration affecting their attitude being the receipt of a donation of £60,000 from Goodman in 1988, made by Deputy Pat Rabbitte on the 15th October, 1990.
Transcripts of the proceedings before the learned Taxing Master over four days were admitted into evidence before me. Mr. White, solicitor, gave evidence to the learned Taxing Master and was not cross-examined on that evidence. From his evidence and from the submissions by the Legal Costs Accountants for the Parties, I have prepared a general summary of the involvement of Mr. White and his firm with the Tribunal. This is not and could not possibly aspire to be a complete statement of the work done by Mr. White and by his firm. The Bill of Costs is itself a most extensive document of 510 pages. The transcripts of the evidence given to the learned Taxing Master total 157 pages. The purpose of this summary is rather to give an overview of the extent of the work involved for the purpose of enabling a valid comparison to be made between this matter and other cases.
May, 1991 Michael White & Company, Solicitors, instructed by Clients.
End June, 1991 Solicitors instruct Senior and Junior Counsel.
July, 1991 Mr. White prepares Submissions of Clients as required by the Tribunal.
17th to 20th July, 1991 Mr. White with Senior and Junior Counsel settles submissions of Clients – 788 folios.
26th July, 1991 Mr. White with Senior and Junior Counsel attends preliminary hearing of Tribunal. Clients are granted "limited representation" by Solicitor with Senior and Junior Counsel when giving their own evidence only.
30th September, 1991 Senior Counsel instructed by Mr. White seeks ruling as to Tribunal Documents. Tribunal rules that Clients of Mr. White will receive books of evidence only where issues raised by Clients is under consideration.
7th October, 1991 Tribunal sends Mr. White legal submissions furnished by Goodman International and requests comment.
9th October, 1991 Mr. White with Senior and Junior Counsel attends opening of inquiry. Book of Allegations read.
10th October, 1991 Mr. White attends Tribunal with Senior and Junior Counsel. Submissions made by Mr. Goodman and Goodman International with respect to their rights and the scope of the Inquiry. Tribunal furnished Mr. White with books grounding the submissions. Submissions made, inter alia, by Senior Counsel instructed by Mr. White.
14th October, 1991 Tribunal adjourned to 7th November, 1991 while judicial review is sought by other parties.
7th November, 1991 Tribunal hearings recommence. Junior Counsel instructed by Mr. White in attendance.
18th November, 1991 Mr. White attends Tribunal with Senior and Junior Counsel.
19th November, 1991 Airfreeze issue commences. Mr. White attends Tribunal without Counsel. Application by Mr. White to participate whenever any issue regarding the allegations made by his Clients arises is granted by the Tribunal. Clients now deemed interested persons thereafter to receive all Tribunal documents relating to these issues.
19th November, 1991 to
2nd December, 1991 Mr. White attends Tribunal without Counsel.
3rd December, 1991 Mr. White receives Tribunal documents concerning Airfreeze and Carousel allegations.
3rd December, 1991 to
5th December, 1991 Mr. White attends Tribunal without Counsel. Important witness, Patrick McGuinness cross-examined by Mr. White.
6th December, 1991 Mr. White receives Tribunal document regarding Waterford – Ballymun and Carousel issues and statements of Norbert Quinn and Gerry O'Callaghan.
7th December, 1991 to
10th December, 1991 Mr. White attends Tribunal without Counsel.
12th & 13th December, 1991 Mr. White attends Tribunal with Senior and Junior Counsel as submissions being made on behalf of Goodman International. Otherwise Mr. White decides to leave the Waterford – Ballymun issue to Counsel instructed by Mr. Spring who also made allegations in this regard. Mr. White continued to receive and monitor the Transcript of Evidence daily.
13th January, 1992 Mr. White furnished with list of witnesses and statement of evidence of Mr. Jimmy O'Mahony.
14th January, 1992 Mr. White attends Tribunal with Senior and Junior Counsel.
23rd January, 1992 Mr. White receives statements and documents relating to the I.D.A. issue.
4th February, 1992 Mr. White receives a book of correspondence in relation to the I.D.A. issue.
3rd March, 1992 Mr. White receives a statement of evidence of Mr. Joe Devlin.
18th March, 1992 Mr. White receives five books of documents relating to the Export Credit Insurance issue.
19th March, 1992 Mr. White receives statement of Mr. Frank Mee relating to the Export Credit issue.
20th March, 1992 Mr. White attends Tribunal with Senior and Junior Counsel. Evidence of Mr. Walsh, Minister for Agriculture and Food in connection with the IDA issue.
24th March, 1992 Mr. White receives a list of the State witnesses in connection with the Export Credit issue and several additional statements.
25th March, 1992 Mr. White receives further documentation from the Tribunal in respect of the Export Credit issue and a statement of Mr. John Dolan.
26th March, 1992 to
9th July, 1992 Mr. White attends Tribunal with Senior and Junior Counsel, (except 28th April, 1992 when Junior Counsel absent). Tribunal concerned with the Export Credit Insurance issue. In evidence Mr. White informed the Taxing Master that he was present each day for ¾ of the sitting period and his assistant attended for the other quarter. The evidence, which I accept, is that the Tribunal on average sat from 09.30 to 14.30 hours each day.
27th March, 1992 Mr. White receives the important document known as "the Blue Book."
30th March, 1992 Mr. White receives additional documents from the Tribunal in respect of the Export Credit issue.
4th April, 1992 Mr. White receives the statement of Mr. Taher.
4th June, 1992 Mr. White receives submissions and correspondence in respect of the C.B.F., issue.
19th June, 1992 Mr. White receives a statement of Mr. O'Malley T.D., and further C.B.F., documents.
25th June, 1992 Mr. White receives a statement of Mr. Pascal Phelan.
1st September, 1992 Mr. White receives Department of An Taoiseach documents regarding C.B.F., issue.
4th September, 1992 Mr. White receives documents regarding the Tax Evasion – Avoidance issue
8th September, 1992 Mr. White attends Tribunal without Counsel on this day and following five days. Tax Evasion – Avoidance issue arising from allegations by his Client Mr. Rabbit T.D.
9th September, 1992 Mr. White receives further Department of An Taoiseach documents and books of correspondence to and from the Secretary to the Government.
23rd September, 1992 Mr. White attends consultation with Senior and Junior Counsel for the purpose of preparing a résumé of the evidence of his Clients cross referenced to the transcripts of evidence. Mr. White received from the Tribunal documents in relation to the Intervention issue.
28th September, 1992 Mr. White receives additional documents relating to the Intervention issue and a statement of Senator O'Kennedy former Minster for Agriculture and Food.
29th September, 1992 Export Credit Insurance issue resumes before the Tribunal and Mr. White attends with Senior and Junior Counsel on this date and until the 29th October, 1992.
16th October, 1992 Mr. White receives a statement of Mr. McSharry, E.E.C. Commissioner and documents relating to Health Certificates and Greenore Port.
23rd October, 1992 Mr. White receives a statement of An Taoiseach, Mr. Reynolds.
4th November, 1992 Mr. White attends the Tribunal with Senior and Junior Counsel. Mr. White also engaged in finalising the First Person statements of his Clients required by the Tribunal. Mr. White stated in evidence before the learned Taxing Master that the preparation of these First Person Statements took Counsel and himself at least ten days. In addition to Client interviews Dáil Debates, motions tabled in Dáil Éireann, Press Releases, Contemporaneous Statements, the Book of Allegations and other documents had to be consulted and considered.
13th November, 1992 Mr. White receives documents in connection with the "World in Action" Television Programme.
1st December, 1992 Mr. White receives documents in relation to the Section 84 Tax issue.
3rd December, 1992 Mr. White attends Tribunal with Senior and Junior Counsel. Evidence of Susan O'Keeffe of Granada Television.
Early December, 1992 Consultations with Senior and Junior Counsel regarding the giving of evidence by Clients and the question of Disclosure Privilege.
7th December, 1992 Mr. White received the statement of Mr. Sean Donnelly in relation to the I.D.A. issue. Mr. White attended the Tribunal without Counsel.
8th December, 1992 Mr. White attends Tribunal with Senior and Junior Counsel. Legal argument regarding the issues of Cabinet confidentiality and constitutional and common law privilege regarding disclosure. Mr. White received a statement from Dr. Cento Veljanofski.
10th December, 1992 Mr. White attends Tribunal with Senior and Junior Counsel. Ruling of the Tribunal.
11th December, 1992 Mr. White receives a statement of Mr. John O'Donnell formally of Irish Transport and General Workers Union.
14th December, 1992 Mr. White receives European Community, Court of Auditors, documents and a transcript of evidence in Director of Public Prosecutions v. Norbert Quinn.
14th to 18th December, 1992 Mr. White attends Tribunal with Senior and Junior Counsel.
21st December, 1992 Mr. White attends Tribunal without Counsel. Evidence of Mr. Spring.
12th January, 1993 Mr. White attends Tribunal with Senior and Junior Counsel. Mr. MacGiolla T.D., gives evidence.
14th & 15th January, 1993 Mr. White attends Tribunal with Senior and Junior Counsel. Mr. Rabbitte T.D., gives evidence.
15th January, 1993 Mr. White receives a statement of Mr. Michael Sargeant in relation to the Corporation Tax issue.
19th January, 1993 Mr. White attends Tribunal without Counsel. Mr. White receives a statement of Mr. Leo Roche.
20th, 21st & 26th Mr. White attends Tribunal without Counsel. Greenore
January, 1993 Port issue.
18th February, 1993 Mr. White receives statement of Senator O'Kennedy former Minister for Agriculture and Food.
24th February, 1993 Mr. White attends consultation with Senior and Junior Counsel.
26th February, 1993 Mr. White receives a list of proposed witnesses for the period 25th February to 2nd March, 1993.
1st March, 1993 Mr. White receives statements of Mr. Brian Brittain and Mr. Aidan O'Connor and other documents. Mr. White attends Tribunal without Counsel.
2nd March, 1992 Mr. White attends Tribunal without Counsel.
3rd March, 1992 Counsel instructed by Mr. White attend Tribunal in absence of Mr. White.
5th March, 1993 Mr. White receives documents in connection with the evidence of Mr. Gerry Maynes.
6th March, 1993 Mr. White receives documents in relation to the evidence of Mr. Larry Goodman.
4th to 12th March, 1993 Mr. White attends Tribunal without Counsel. Evidence of Mr. Larry Goodman.
23rd March, 1993 Mr. White receives closing statements of Mr. Gerry Thornton, and Mr. David Murphy and additional statements of Mr. Declan McDonnell, Mr. Finbar McDonnell, Mr. James Walsh, Mr. Peter McGuire, Mr. Kenny Robbins, Mr. George Mullin, Mr. Colm O'Loughlin and Mr. John Kelliher.
25th March, 1993 Mr. White receives statement of Mr. John Connolly. Mr. White and Counsel prepare final submissions on behalf of Clients.
5th April, 1993 Mr. White attends Tribunal without Counsel and hands in final submissions of Clients.
15th July, 1993 Mr. White attends Tribunal with Junior Counsel. Submissions made in respect of costs.
In the case of Best v. Wellcome Foundation Ltd. & Ors. (1996) 1 I.L.R.M., 34 at 46, in a judgment delivered on the 19th May, 1995, Barron, J., held that, "comparison is ultimately the correct approach to assess the [Solicitors] Instructions Fee". The learned judge held at p. 43 of the same Judgment that an analysis of Order 99, Rule 37 (22) (II) of the Rules of the Superior Courts, 1986, demonstrated that the amount of the solicitor's instructions fee was determined by three criteria only:
(1) any special expertise of the solicitor,
(2) the amount of work done and
(3) the degree of responsibility borne.
In the case of McGrory v. Express Newspapers plc and Anor. (High Court, 21st July, 1995, Unreported), Murphy, J., at p. 13 of the Judgment emphasised that, "an instructions fee, unlike a brief fee, is not earned simply by the fact of receiving instructions in any given case. It represents a payment for work done."
In Smyth v. Tunney (1993) 1 I.R. 451 at 468/9, Murphy, J., asked the question, "What is an instructions fee?" He gave the following answer to this question:-
"Mr. Anthony Behan, a very experienced legal costs accountant who gave evidence on behalf of the plaintiffs, explained that it was to cover taking instructions for the trial or hearing and not merely instructions for the preparation of a brief. He said it was to cover the overall care and attention which the case required: the difficulties in taking proofs of evidence from intended witnesses and generally organising the case; ensuring the availability of witnesses and indeed the availability of counsel. It had to cover 'living with the case'. It covered a variety of consultations as well as the cost of assembling and preparing the brief itself. Mr. William Brennan, the costs drawer who gave evidence on behalf of the defendants, explained that the instructions fee was frequently referred to as 'the great equaliser'. It was the means by which solicitors were compensated for the minimal nature of the fees allowed on the itemised basis.
The way in which the costs of a solicitor are to be computed is dealt with in Order 99, Rule 12 (1) as follows:-
'The scale of costs contained in Appendix W, Parts I, II and V, together with the notes and general provisions contained therein shall apply to the taxation of all costs incurred in relation to contentious business.'
Part I of Appendix W identifies 81 separate items which arise in relation to litigation. In respect of ten of those items no fee is prescribed at all. The particular items are expressly left to the discretion of the Taxing Master. Of the remaining 71 items either particular fees are prescribed or in some cases fees within a given range are prescribed. For example, under item 23 (a)(II) a solicitor may be allowed a fee of between £4.03 and £16.12 for each day he attends at a hearing within 20 miles of the place where he carries on practice. That indeed is the largest of the itemised prescribed scale fees. The vast bulk of the fees are in the order of £1 or £2 with or without some pence. In the result a solicitor's bill will, as the present case illustrates, record in page after page sums of a magnitude of 28p or £16 and rarely exceeding in total a figure of £2,000 or £3,000 until the instructions fee is reached. The proposed fee is in all cases justified by reference to the complexity and importance of the action and, that explanation having been given, a fee of several thousand pounds takes up its place amongst the trivial items included in the professional charges column.
Why the Rules of the Superior Courts persist in prescribing fees which are demonstrably unreal even by reference to transport costs and clerical overheads is difficult to understand and how the Taxing Master or court could be assisted by the quotation in the bill of costs of lengthy passages from the pleadings in the action or counsel's advice on proofs is equally difficult to follow. Indeed this was the practice which the late Mr. Justice Kenny condemned in the final paragraph of his judgment in Lavan v. Walsh (No. 2) [1967] I.R. 129.
'Outrageously low though the solicitor's prescribed fees may be, I find difficulty in acquiescing in the proposition that the instruction fee should be used to compensate the solicitor (whether as against his own client or the unsuccessful party to the proceedings) for the inadequacy for the fees payable for the individual items. What could be more unreal than the Taxing Master hearing a debate between legal costs accountants as to whether in a particular case a solicitor should be allowed £4 per day or £16 per day for attending at the trial of an action and having adjudicated upon that controversy, to allow a fee of several thousand pounds to provide a realistic remuneration for his attendance in court? If the Taxing Master in the first instance were to allow on a party and party basis a fee of, say £18 per day for attendance at court, that, as I understand it, would be ultra vires and yet he would be asked to achieve the same result by allowing a substantial instructions fee. It seems to me that it would be much more in the interest of clients and the public generally if realistic fees were prescribed in the first instance so that it would not be necessary to have recourse to this artificial and in my view doubtful procedure for obtaining proper remuneration.'
In the meantime I must apply the procedure as it exists and as it has operated for many years."
The Tribunal of Inquiry into the Beef Processing Industry sat on 226 days. It was agreed between the parties to this Appeal that Mr. White represented his Clients before the Tribunal on 129 days, on 82 of which he instructed one Senior Counsel and one Junior Counsel to appear on behalf of his Clients. The Legal Costs Accountants on both sides accept that the remit of the Tribunal was more extensive and the issues it had to address were more complex than any previous Tribunals of Inquiry established in this State. However, Deputy Rabbitte and Deputy MacGiolla were allowed representation by Solicitor and two Counsel only for the duration of their own evidence and on those occasions upon which evidence was given in relation to specific allegations made by either of them.
By way of a comparison, Mr. Fitzpatrick, Legal Costs Accountant for the applicant, instanced the instructions fee of £60,000 (former currency) allowed in July, 1981 by Taxing Master De Valera to the Solicitors for Mr. & Mrs. Brennan in the Whiddy Inquiry. The Brennans represented the next of kin of those who so tragically lost their lives in the explosion and fire at the Whiddy Island Oil Terminal on the 7th and 8th January, 1979. That Inquiry lasted 71 days. The Instructions Fee sought by the Solicitors for Mr. & Mrs. Brennan was £175,000. Mr. Fitzpatrick was prepared to concede that in the circumstances this sum may have been somewhat of an undercharge. Mr. Fitzpatrick calculated that the sum of £60,000 allowed by the Taxing Master amounted to a daily rate of £845 to the nearest pound. To this he applied the Consumer Price Index which produced an equivalent daily rate of £2,361.09 in May, 1994. Including preliminary sessions the Tribunal of Inquiry into the Beef Processing Industry sat from July, 1991 to July, 1993. The Order allowing taxed costs on a party and party basis to Deputy Rabbitte and Deputy MacGiolla is dated the 29th July, 1994. Multiplying this sum of £2,361.09 per day by 129, being the number of days upon which Mr. White represented his Clients before the Tribunal, produced a total of £304,581.07, a figure substantially less than the Instructions Fee of £580,500 allowed by the Taxing Master to White & Co., Solicitors. The Instructions Fee claimed was £675,000.
Mr. Fitzpatrick argued that the burden of obtaining witnesses, taking statements and obtaining Reports, organising the case, assembling the Brief for Counsel and organising and ensuring the attendance of lay and expert witnesses was much greater for the solicitors for Mr. & Mrs. Brennan than for Mr. White. He pointed out that Taxing Master De Valera had found that these Solicitors had "scoured the countryside" around Bantry Bay seeking eye witnesses to the disaster. In addition, they had to obtain technical evidence from Engineers and Metallurgists. By contrast, Mr. Fitzpatrick stated, Mr. White consulted only one potential witness apart from his own Clients. The evidence established that Mr. White had spent ten hours in total in consultation with a University Lecturer in Economics and Statistics. This was for the purpose of enabling him to deal properly with the allegation made by Deputy Rabbitte that the then Government had made a special arrangement to enable Mr. Goodman to avail of High Coupon Finance to fund speculative ventures abroad. For these consultations the expert charged a total fee of £1,000.
Mr. Fitzpatrick further argued that it was the task of Counsel and Solicitors for the Tribunal to obtain and to peruse all such documents and records as were available pertaining to the allegations made by Deputy Rabbitte and Deputy MacGiolla, to decide which of those documents were relevant and admissible in evidence, to decide what witnesses were required to give evidence and how the matter would be generally conducted. Mr. Fitzpatrick submitted that Mr. White, unlike the Solicitors for Mr. & Mrs. Brennan, did not have to defend his Clients against any allegations and his sole task was to ensure that all facts relevant to their allegations were fully and properly disclosed to the Tribunal.
Mr. Behan, Legal Costs Accountant for Deputy Rabbitte and Deputy MacGiolla, submitted that the Tribunal of Inquiry into the Beef Processing Industry was unlike any other Tribunal of Inquiry which had been established in this State. All such other Tribunals, he claimed, including the Whiddy Inquiry, related to specific instances while the instant Tribunal was charged with inquiring into alleged fraud and malpractice in the entire industry. Mr. Behan told the Taxing Master:-
"I would be in a position to produce comparative cases when we are addressing those issues in the Bill of Costs but I would sound this warning – the true construction of the word 'comparable' means compare like with like. In my respectful submission this case is unique. This matter is without precedent in the State. You will not find a comparison. However, I will offer you some comparisons de bene esse in respect of these."
The Taxing Master appears to have accepted the submission of Mr. Behan for the Costs that no true comparison could be made between the Whiddy Inquiry and the Tribunal of Inquiry into the Beef Processing Industry for the purpose of arriving at an Instructions Fee. The Taxing Master ruled that no such comparison could properly be made by reason of the amount of time involved, the complexity and breadth of the topics and the responsibility faced by the solicitors in the latter Inquiry and the fact that the former Inquiry was in respect of a single topic only, whereas the latter, even within the representation allowed to Deputy Rabbitte and Deputy MacGiolla covered six entirely disparate topics. While undoubtedly adjustments would require to be made, I am not entirely satisfied that the Whiddy Inquiry would not provide a suitable comparison for any of these reasons. However, I am satisfied that it is too remote in time to afford a reliable guide to what a solicitor could properly expect to receive by an Instructions Fee in July 1991, a decade after the Taxation of the Costs of Mr. & Mrs. Brennan by Taxing Master De Valera in July, 1981. Adjustments which allow for changes in the value of money during this period do not take into account changes in the levels of Instructions Fees themselves during this period. Unfortunately, as the Taxing Master has pointed out, Mr. Fitzpatrick for the Applicant did not refer to any other comparisons.
I am quite satisfied on the evidence that the learned Taxing Master allowed himself to be persuaded to depart from the principles set out in the cases of Smith v. Tunney, Best v. Wellcome Foundation Ltd. & Ors., and McGrory v. Express Newspapers plc & Anor., to which I have already referred. Having decided that the Tribunal of Inquiry into the Beef Processing Industry was without parallel in the history of this State, the Taxing Master considered that no true comparison for an Instructions Fee for White & Co., Solicitors, could be found and that this should be accepted, "rather than trying to fit a square peg into a round hole". The learned Taxing Master refused to consider that any assistance could be found by looking at other Tribunals of Inquiry established in the State. He went on to hold that:-
"Similarities and comparisons are part of legal cost accounting but they are not the most important factors. The nature and enormity of the case and the responsibility resting on the Solicitor ultimately determined the justification for the fee and is an integral part of assessing what is a fair and appropriate fee in any given case."
From the figures offered by Mr. Behan for the Costs, even though no basis was given for these figures, and from the figure of £2,361.09 extrapolated by Mr. Fitzpatrick from the Instructions Fee allowed in the Whiddy Inquiry, the Taxing Master determined that a daily attendance rate of somewhere between £1,500 and £2,500 would be appropriate as part of the Instructions Fee to be allowed to Mr. White.
The Taxing Master allowed a sum of £1,500 for each of the 82 days upon which Mr. White appeared with Senior Counsel and Junior Counsel and £2,500 on each of the 47 days when Mr. White appeared without Counsel. This uplift of £1,000 per day in respect of the days when Mr. White appeared without Counsel was said by the Taxing Master to cover the matters indicated by Finlay, P. (as he then was) in H.P. v. W.P. (1985) I.L.R.M. 527 at 531 as follows:
"A solicitor who decides to plead a case himself must give to it at each and every hearing his personal attendance or the personal attendance of a senior and suitably experienced and qualified member of his firm. He must in addition, not only carry out the ordinary preparatory work which would be appropriate for the purpose of briefing counsel, preparing and having made ready the documents he needs and securing the attendance of witnesses and submitting proofs of their evidence but must, it seems to me, make specific preparation by way of research into any legal points that may arise and by way of consideration of the approach and pleading of the case on the facts as would be appropriate for a counsel preparing a brief. For this additional work an additional factor should, it seems to me, become material in the general assessment of his instructions fee."
To this total of £240,500 the learned Taxing Master then added a sum of £150,000 to reflect what he found to be the complexities and difficulties faced by Mr. White as a sole practitioner in mastering the working practices of a complex national industry and, "not only to know how it functioned but to be familiar with and know the minutiae of the Industry so that he would be in a position to properly represent his clients and thereby assist the Tribunal." How this figure of £150,000 was calculated is left entirely at large and seems to me to represent nothing more than the Taxing Master's personal opinion in the matter. It would, for example, equate to an additional 100 days on which "the Solicitor was involved with the matter from morning until late at night" at what the Taxing Master considered to be the appropriate daily rate of £1,500.
The learned Taxing Master then proceeded to add yet a further sum of £150,000 to cover what he described as, "the skill, specialised knowledge and responsibility required of Mr. White. Also, the time and labour expended by him and the importance of the matter to his Clients . . . to whom the matter was of the utmost importance as it could well have affected their future as public representatives." The learned Taxing Master considered that Mr. White had to acquire specialised knowledge and to exercise special skill in order to proceed properly in the matter. In addition the Taxing Master had regard to the evidence that the Tribunal on occasions sat from 09.30 hrs. to 16.30 hrs. He also found that Mr. White had to transport documents daily to and from Dublin Castle where the sittings of the Tribunal were held. Again, no indication is furnished as to why the particular figure of £150,000 was chosen and it seems to represent nothing more than the learned Taxing Master's own unrelated idea of what was an appropriate sum in the circumstances.
Finally, the learned Taxing Master added a further sum of £40,000 to cover the work done by Mr. White in dealing with the issue of the disclosure to the Tribunal of the sources of information upon which the allegations made in Daíl Éireann by Deputy Rabbitte and Deputy MacGiolla were based and whether protection was afforded to Members of Daíl Éireann under the Constitution or by virtue of Common Law from being required to disclose those sources to the Tribunal. The learned Taxing Master ruled that this issue, "was a totally different matter". In arriving at this figure of £40,000 the learned Taxing Master did have regard to the following Instructions Fees cited in the Bills of Costs, - it is not stated whether these were Taxed or Agreed, - namely:
(1) re: Daíl Deputy Constitutional Privilege, Judicial Review, 1992 No. 366 J.R. £28,000.
(2) re: Common Law Privilege, Judicial Review, 1993 No. 91 J.R. £28,000.
(3) re: Scope and Remit of the Tribunal, Judicial Review, 1991 No. 233 J.R. £22,000.
Mr. Behan for the Costs referred the Taxing Master, de bene esse, to nine comparisons. While these appear to relate mostly to the question of Brief Fees paid to Counsel, two of the cases are relevant to the issue of the Instructions Fee payable to a solicitor. These are:-
International Commercial Bank plc v. I.C.I. and Ors. (High Court Order 17th November, 1990: Supreme Court Order 31st July, 1992).
Best v Wellcome Foundation Ltd. & Ors. (1996) 1 I.L.R.M. 34, (High Court, judgment of Barron, J., delivered 19th May, 1995).
The learned Taxing Master accepted that in this latter case Mr. Justice Barron had been referred to and had considered a number of comparable cases in arriving at his decision, namely, Crilly v T. & J. Farrington Ltd. (High Court, 26th August, 1992, Denham, J.; Aga Khan v. Firestone (1992) ILRM 31; O'Dwyer v. Dennehy; Moriarty v. McDonald; O'Sullivan v. O'Sullivan; and Northern Bank Finance Corporation Ltd. v. Charlton, (1979) I.R. 149. Mr. Justice Barron also referred to the Instructions Fee agreed on the liability issue in the same case of Best v. Wellcome Foundation Ltd. & Ors. which issue is reported at (1993)3 I.R. 421. At p. 46 of his Judgment on the Appeal as to costs in respect of the issue of the assessment of damages in Best v. Wellcome Foundation Ltd. & Ors., (1996) 1 I.L.R.M. 34, Barron, J., held:-
"In my view comparison is ultimately the correct approach to assess the Instructions Fee. Having regard to several examples, it is my view appropriate to base the fee in the instant case upon that agreed in Crilly v. T. & J. Farrington Ltd."
In my judgment the learned Taxing Master ought to have based his decision as to the Instructions Fee to be allowed to White & Co. in the present case upon the Instructions Fees agreed and allowed on both issues in Best v. Wellcome Foundation Ltd. & Ors., (ante)
The Taxing Master having found, correctly in my judgment, that many aspects of the Tribunal of Inquiry into the Beef Processing Industry were unique, unfortunately and in my judgment incorrectly, concluded that as a result no guidance could be obtained as to the correct level of the Instructions Fee from Instructions Fees agreed between the parties or allowed on taxation in any of the cases to which he was referred and I must infer from other cases within his own knowledge. When it comes to deciding on an appropriate Instructions Fee to be allowed to a Solicitor to cover the work done by, the special expertise of and the degree of responsibility borne by that Solicitor, it is not necessary in my judgment that there should be an exact similarity between cases – something which would in any event be seldom if ever achieved, - for there to be a valid comparison. Neither is it necessary that the differences between cases for this purpose should be capable of some form of exact mathematical evaluation. In my judgment the Taxing Master is concerned to find guidance from the broader and more general picture and should not be unduly concerned with the more minute differences between the cases sought to be compared. Of course the greater the degree of similarity between cases the more appropriate the comparison should be.
The case of Crilly v. T. & J. Farrington Ltd. was an assessment of damages in which Denham, J., the trial Judge described the plaintiff's injuries as being a unique combination of disabilities. The case on liability in Best v. Wellcome Foundation Ltd. & Ors. (above cited) involved complex questions of science and microbiology as well as other difficult issues of fact and of law described by Barron, J., as "unique". In the former case the Solicitor's Instructions Fee was agreed by reference to a basic fee and a fee of approximately £1,000 per day for each day of the hearing. This breakdown of the Instructions Fee was accepted by Barron, J., who, "used the same type of analysis" to find that the agreed Instructions Fee of £275,000 on the liability issue in the latter case included a basic Instructions Fee of £200,000 ([1996] 1 I.L.R.M. 34 at 44 and 46).
In the instant case the learned Taxing Master allowed Mr. White an, "attendance fee" of £1,500 per day for each of the 82 days on which that Solicitor appeared before the Tribunal with Senior Counsel and Junior Counsel. The judgment in Crilly v. T. & J. Farrington Ltd., was handed down by Denham, J., on the 26th August, 1992 after a hearing of approximately eighteen days. The liability issue in Best v. Wellcome Foundation Ltd. & Ors., was heard in the High Court between the 18th April, 1989 and the 30th June, 1989, and in the Supreme Court in May, 1992, a total of 44 days overall. The sittings of the Tribunal of Inquiry into the Beef Processing Industry extended, with intervals, from the 26h July, 1991 to the 15th July, 1993. The evidence of Mr. White before the learned Taxing Master, which was not challenged, was that the Tribunal on most days sat from 09.30 hrs. to 16.30 hrs. with an interval of 10 minutes mid-morning and afternoon and with a break of about one hour for luncheon. It was accepted on behalf of the Applicant that the matters scrutinised by the Tribunal were complex, in particular the issue of alleged abuse of the Export Credit Insurance Scheme by the then Government in order to, it was claimed, confer an improper business advantage on the Goodman Group of Companies, the hearing of which issue lasted for 82 days. On average on each day the Tribunal sat for almost 50% longer than what I may infer were the normal sitting hours in Crilly v. T. & J. Farrington Ltd. On these facts, in my judgment, the decision of the learned Taxing Master to allow a daily attendance rate of £1,500 for each of these 82 days could not be said to be disproportionate or unjust to the Applicant.
For each of the 47 days when Mr. White appeared without the assistance of Senior Counsel or Junior Counsel and addressed the Tribunal and cross examined witnesses on behalf of his Clients, the learned Taxing Master in alleged compliance with the principles expounded by Finlay, P. (as he then was), in H.P. v. W.P. (above cited) allowed Mr. White a daily attendance rate of £2,500. This exceeds the Refresher Fee of £2,100 per day allowed by the Taxing Master to the leading member of the Inner Bar retained by White & Co., Solicitors, on the issue of the Export Credit Insurance Scheme. The basic Instructions Fee and the Attendance Fee allowed per day of the hearing must be regarded in my judgment as compensating the Solicitor for inter alia the burden and responsibility, having determined to deal with certain topics himself, of becoming fully familiar with the facts of the matters in issue, any background Legislation and the contents of any relevant documents. For additional matters such as researching any legal points that might reasonably be foreseen as likely to arise during the hearing and for considering the approach to and the pleading of the case in the words of Finlay, P., (as he then was) in H.P. v. W.P., (above cited) at p. 531, "an additional factor should become material in the general assessment of his Instructions Fee". In my judgment a Taxing Master properly addressing his mind to these matters could not reasonably allow, as part of the Solicitor's Instructions Fee an additional sum of £1,000 per day for 47 days to cover these additional items. This "additional factor" cannot in my judgment be assessed on the basis of a fixed daily add-on rate or even by way of a fixed allowance for individual issues and topics. Such an approach must inevitably result in a serious over payment by reference to such considerations as the degree of already acquired knowledge, prior consideration of issues, repeat decisions, and the fact that such additional matters do not generally arise on a consistent daily basis. The Taxing Master must assess the degree of additional responsibility borne by the Solicitor and allow a single appropriate additional sum to reasonably compensate the Solicitor for this additional responsibility.
The function of the Tribunal of Inquiry into the Beef Processing Industry as found by the Supreme Court was, "to carry out a simple fact finding operation and report thereon to the Legislature and the Minister for Agriculture and Food and in so doing have regard only to properly admitted evidence which had where necessary been subjected to cross examination." There was no evidence that any specific legal points arose or were anticipated as reasonably likely to arise with respect to any of the matters considered by the Tribunal during this period of 47 days when Mr. White appeared without the assistance of Senior Counsel or Junior Counsel. All documents were furnished and introduced into evidence and all witnesses were called by the Counsel and the Solicitors for the Tribunal. Mr. White had the extra responsibility, which would normally fall to Counsel, of deciding whether it was necessary to make an argument or embark upon a cross examination and if so, what points to make or what line of questioning to pursue. I do not accept the argument that by reason of the involvement of Senior Counsel and Junior Counsel in other aspects of the matter, the attendance of Mr. White on these 47 days was not the equivalent of conducting a case without any involvement of Counsel. I believe that I may properly infer that Mr. White probably obtained some general advantage from the involvement in other aspects of the matter of distinguished Counsel, but on the evidence I am quite satisfied that the topics addressed during these 47 days were quite distinct and separate and required to be considered by Mr. White as such. In my judgment a Taxing Master properly considering these matters could reasonably have allowed an additional sum in the region of £15,000 to properly compensate Mr. White for the additional responsibility involved without doing injustice to the Applicant.
From the Report of the Tribunal of Inquiry into the Beef Processing Industry I have ascertained that a total of 452 books of transcript of proceedings before the Tribunal were produced. The Tribunal reported that:-
"From the files, submissions and statements made available to it the Tribunal compiled books of documents under various subject headings. In all the Tribunal compiled 52 volumes of documentation consisting of 150 Books, together with additional material not presented in Book Form . . . Those who were granted limited representation were served only with documents relating to areas for which they had such representation."
Mr. White gave evidence which was not challenged that as and from the 19th November, 1991 he was given the right to participate fully in the Tribunal and to cross examine all witnesses. All books of documents were served on him immediately and thereafter. It seems proper to conclude that Mr. White was referring to books of documents which in any way touched upon the allegations made by Deputy Rabbitte and Deputy MacGiolla. Mr. White gave evidence before the learned Taxing Master, which was not challenged or contradicted, that he considered it necessary to the proper representation of his Clients to get the transcript of each day's proceedings from the start of the hearings proper, - which was on the 7th November, 1991, - and to constantly monitor these to see if and to what extent his Clients' interests were affected. During the 129 days of his appearances before the Tribunal he collected the Transcript for each day at about 22.00 hrs. and then considered and analysed the contents until 02.00 hrs. and sometimes 03.00 hrs. the following morning. Mr. Behan, Legal Costs Accountant for the Costs told the Taxing Master that the documents briefed by White & Co., Solicitors to Senior Counsel and to Junior Counsel on the Export Credit Insurance Scheme issue alone filled about twelve "banker's boxes". From my own experience of handling these ubiquitous containers which are generally of a similar size, each is capable of accommodating approximately six large "ring binders" of documents. Mr. White in his evidence to the learned Taxing Master described the overall volume of documents as, "huge amount of documentation". He said that documents and records started out with documents from the Department of Industry and Commerce but widened out into a huge undertaking. Mr. Fitzpatrick for the applicant agreed that "some fifteen 'books' were received" by White & Co. dealing with the Export Credit Insurance Scheme issue.
From the evidence of the Bill of Costs a large volume of additional documents were served by the Tribunal on Mr. White in relation to the other topics in respect of which his Clients had made allegations. Having regard to the topics and allegations as summarised at page 25, paragraph 6 of the Report of the Tribunal of Inquiry into the Beef Processing Industry and also by reference to the full text of the Report of that Tribunal and to the Appendices to that Report in particular Appendix V, "list of exhibits" I believe that I may infer that at least eight more volumes of documents, records and correspondence, many consisting of multiple books, were served on Mr. White by the Tribunal in relation to these topics.
I find on the evidence that Mr. White had to make himself fully familiar with a wide spectrum of difficult and varied topics including inter alia the following: the nature and the operation of Intervention Measures in the Beef Sector of the Irish Economy including the Rules and Regulations governing the system under which European Union subsidy payments were made to the Beef Industry in Ireland, especially as regards the stamping, labelling and packaging of meat; the Export Credit Insurance Scheme together with the appropriate provisions of the Insurance Acts, 1953 to 1988; the European Communities' (Non-life Insurance) Regulations, 1976 and the E.E.C. Council Directive 73/239; the Agency Agreements between the Minister for Industry and Commerce and the Insurance Corporation of Ireland plc, 1971 and 1987; the Medium and Short Term Finance Schemes operated by the Insurance Corporation of Ireland plc under these agreements which authorised that company to issue guarantees on behalf of the Minister for Industry and Commerce to the Industrial Credit Corporation and various Banks; the provision of Industrial Grants by the Industrial Development Authority and the provisions of the Industrial Development Act, 1986; the negotiations for and the terms of the Grant Agreement with Goodman International Ltd. made on the 22nd March, 1988; the Finance Acts, 1986 and 1987, s. 84 of the Corporation Tax Act, 1976 as amended by s. 41 of the Finance Act, 1984 and the provision of finance by way of High Coupon Currency Swap Facilities under that Section; s. 94 of the Finance Act, 1983 as regards offences and ss. 15 and 16 of the Companies Amendment Act, 1990. Mr. Behan for the Costs furnished to the Taxing Master an invoice which demonstrated that in order to assist Mr. White in understanding the complex issue of High Coupon Currency Swap Facilities Mr. White felt it necessary to spend ten hours in consultation with a member of the Department of Economics of Dublin University.
During the course of the Export Credit Insurance Scheme issue, when Mr. White appeared before the Tribunal with Senior Counsel and Junior Counsel, evidence was given by witnesses including the then Taoiseach, senior Government Ministers, high ranking Government and Department officials, members of the Diplomatic Corps, Mr. Goodman and Mr. Britton, Deputy Chief Executive of Goodman International. In dealing with the other issues without the assistance of Counsel, Mr. White dealt with the evidence of a large number of witnesses including the then Taoiseach, the Minister for Industry and Commerce, the Minister for Agriculture and Food, the Managing Director and Officers of the Industrial Development Authority, Senior Government and Departmental Officials, a Revenue Commissioner, two Inspectors of Taxes, the Examiner of the High Court, two senior members of the firm of Stokes, Kennedy, Crowley, auditors to the Goodman Group of Companies. Mr. Patrick McGuinness, a high profile witness who was represented before the Tribunal by Counsel and Solicitors from Canada, and a number of officers and employees of the Goodman Group of Companies. The Evidence established that Mr. White had cross examined a number of these witnesses.
Mr. Fitzpatrick, Legal Costs Accountant on behalf of the Applicant, accepted that the Export Credit Insurance Scheme issue, "was not an easy subject". It appears clear on the evidence that the issue relating to the alleged abuse of High Coupon Currency Facilities was also particularly difficult. The remaining issues, the alleged abuses of the system under which subsidies are paid by the European Union to those engaged in the Beef Industry in this State, the alleged failure of the regulatory authorities to act due to the alleged exercise of political influence, the alleged tax evasion by Goodman Employees and other allegations of the abuse of alleged political influence, raised mainly issues of fact and did not give rise to difficult or complex legal, economic and socio-political issues. However, because of the great body of documentation and the numbers of high profile witnesses involved, in my judgment they could not properly be described as simply straightforward and routine matters of investigation. The issue as to whether Deputy Rabbitte and Deputy MacGiolla were entitled by virtue of the provisions of the Constitution of Ireland or under the Common Law to claim privilege from disclosing to the Tribunal the sources of the information upon which their allegations were based was beyond any shadow of doubt a very difficult and profoundly important issue of Law. It is clear from the evidence of Mr. White before the learned Taxing Master that from the very moment the Tribunal was established this was anticipated by Mr. White and his Clients as an issue which would arise during the course of the investigative work of the Tribunal. Mr. White stated at the hearing before the learned Taxing Master that he went through the whole issue of privilege and advised his Clients in writing with regard to it, between a date in May, 1991 when he was instructed and the 21st June, 1991. This was prior to counsel being briefed in the matter.
I accept the submission on behalf of the Applicant that the learned Taxing Master erred in principle in allowing a separate, specific Instructions Fee of £40,000 in respect of this issue of Privilege. A Solicitors Instructions Fee is intended to cover all the work done, special expertise employed and responsibility borne by the solicitor in dealing with all the issues of fact and of law which arise in any particular case or matter. Issues, however complex, which arise in the course of a particular cause or matter are part of that matter and must not be isolated as matters of separate instruction and additional or special Instructions Fees allowed in respect of them. I am not deciding that circumstances could never arise in the course of a cause or matter in which more than a single Instructions Fee would be allowable. However, in my judgment such circumstances would be very rare and the present matter is certainly not one.
In the course of his judgment on the issue of liability in Best v. Wellcome Foundation Ltd. & Ors., (1993) 3 I.R. 422, Finlay, C.J. at p. 444 found that:-
"Wellcome had made the most ample discovery of a very large mass of documentary evidence concerning the manufacture and testing of this triple vaccine as well as evidence in documentary form of scientific papers, documents and research in which the employees of Wellcome were involved and which was known to them. As a result in the course of the Trial in the High Court over 30 large Books of Documents were admitted into evidence and formed part of the material of examination and cross examination. The Defendant Wellcome, had agreed prior to the hearing to the admission without formal proof of documents which had been discovered by them and were relevant to the questions at issue."
In that case the overwhelming bulk of the documents discovered came not from the plaintiff but from Wellcome Foundation Ltd., Dr. O'Keeffe, Dr. Cussen and the Southern Health Board. It is abundantly clear from the Judgment of Hamilton, P., (as he then was), in the High Court and that of Finlay, C.J. on the Appeal to Supreme Court that the questions at issue were several and gave rise to complex and difficult issues of law and fact including inter alia, "disputes between distinguished scientists" and doctors as to matters of science, micro-biology and medicine. The provisions of the United Kingdom Therapeutic Substances Act, 1956 and the 1963 and 1964 Regulations made thereunder, the British Pharmacopoeia Therapeutic Substances Regulations and various World Health Organisation Statements and Declarations had to be considered in the course of dealing with these questions. In addition to Mr. & Mrs. Best, evidence was given by Professors Wardlaw, O'Donoghue, Cussen, Gabriel, Behan and Ehrengist and by doctors O'Keeffe, Watson, Ewan-Ross and Fagan. The Plaintiff in that action had suffered catastrophic personal injuries and because the alleged cause of those injuries was the inoculation of the Plaintiff as an infant with the widely used D.T.P. Vaccine the case attracted very considerable popular and news media interest.
In my judgment, while acknowledging that the topics under consideration were very different, taking a broad view of the two matters, as I have found the Taxing Master must do, having regard to the complexities and difficulties involved in both matters, the Solicitor's Instructions Fee of £200,000 agreed between the Legal Costs Accountants as proper to be allowed to the Solicitor for the Plaintiff on the liability issue in Best v. Wellcome Foundation Ltd. & Ors., together with the Instructions Fee of £75,000 allowed by Barron, J., on the issue as to the assessment of damages in that case, afforded the Learned Taxing Master a proper comparison to which he ought to have had regard in assessing the Solicitors Instructions Fee in the instant case. Having proper regard to the evidence of the amount of work done and responsibility borne by Mr. White in relation to the Export Credit Insurance Scheme issue, I am satisfied that a Taxing Master, having regard to the Solicitors Instructions Fee of £200,000 agreed on the liability issue in Best v. Wellcome Foundation Ltd. & Ors. could not be criticised for allowing an Instructions Fee of an equivalent amount in respect of that issue if it stood alone. Again, broadly comparing the work done and the responsibility borne by the Solicitor for the Plaintiff on the assessment of damages in Best v. Wellcome Foundation Ltd. & Ors. which Barron, J., held involved immense detail and in respect of which he allowed a Solicitors Instructions Fee of £75,000, with the evidence of the work done and responsibility borne by Mr. White in dealing with the other issues before the Tribunal, - the alleged abuses of the E.U. subsidies system; the alleged failure of the Regulatory Authorities due to alleged Political Interference to stamp out such abuses; the alleged income tax evasion by employees of the Goodman Group of Companies; the alleged abuses of Special High Coupon Finance Loans by Mr. Goodman; the alleged preferential treatment as regards loans, repayment terms and allocation of premises afforded by the I.D.A. and by I.C.C. to the Goodman Group of Companies and the alleged abuse of Political Influence by Mr. Goodman and the Goodman Group of Companies, in my judgment a Taxing Master could not be criticised for allowing an additional sum of up to £100,000 in respect of these issues, making all reasonable allowance for knowledge pre-acquired by Mr. White in dealing with the Export Credit Insurance Scheme Issue.
In my judgment the work done by Mr. White before the Tribunal of Inquiry into the Beef Processing Industry did not call for the employment of any special expertise on his part. I repeat what was held by the Supreme Court, that the function of the Tribunal was to "carry out a simple fact finding operation . . . ". Undoubtedly Mr. White did not have to seek out, obtain statements from and secure the attendance of witnesses as did the solicitor for the plaintiff in Best v. Wellcome Foundation Ltd. & Ors. However, as Barron J., pointed out at p. 41 of his Judgment on the appeal from the decision of the Taxing Master in respect of the assessment of damages aspect of Best v. Wellcome Foundation Ltd. & Ors., (1996) 1 I.L.R.M. 34, it is possible to overestimate the work involved in obtaining and presenting this evidence. Organisations dealing with persons who suffer serious medical injuries identified various expert witnesses who then furnished comprehensive reports to the solicitors for the plaintiff in that case. Other aspects of the evidence as to loss were dealt with by members of the family and friends of the Plaintiff who were highly motivated and extremely well prepared. Despite sounding such notes of caution, Barron, J., held that the work involved in the preparation and presentation of the damages claim in Best v. Wellcome Foundation Ltd. & Ors., was "painstaking and massive" and that the burden of that work was increased by reason of the refusal on the part of the defendants to agree any item of special damage.
In Best v. Wellcome Foundation Ltd. & Ors., the liability issue was at hearing for 35 days before the High Court and 8 days before the Supreme Court. The issue as to the amount of the damages was compromised after a hearing lasting 3 days, damages being agreed in the sum of £2,750,000 plus costs. Mr. White represented his clients either alone or with the assistance of Counsel before the Tribunal for 129 days. In my judgment he dealt with a more extensive volume of documents and records which, in addition, were not made available in advance but were furnished in phased increments by reference to the topic under investigation. He dealt with evidence covering at least six or seven major disparate topics of inquiry, very often given by high calibre and high profile witnesses. In my judgment this more than redresses the balance as regards any advantage accruing to him through not having to provide witnesses other than his own Clients. I am quite satisfied on the evidence that the description, "painstaking and massive" could with equal justice be attributed to the work done by Mr. White in preparing for and in appearing before the Tribunal of Inquiry into the Beef Processing Industry.
In my judgment in allowing an Instructions Fee of £580,500 to White & Co., Solicitors, the Learned Taxing Master erred as to the amount of that allowance and misdirected himself in law in failing to apply the correct principles in the calculation of that sum. I am further satisfied that the sum of £580,500 is so in excess of the sum which a comparison with the Solicitors Instructions Fees allowed and agreed in
Best v. Wellcome Foundation Ltd. & Ors., would suggest as appropriate, that it must be considered unjust. In the words of McCracken, J., (then of the High Court), in the case of Smyth v. Tunney (1999) 1 ILRM 211 at 213, - "I cannot approach this issue on the basis of trying to assess what costs I would have awarded had I been the Taxing Master." I am, however, satisfied that had the Taxing Master applied the correct principles of comparison in assessing the appropriate Instructions Fee, he could not reasonably have allowed more than £450,000 (former currency). In my judgment this sum of £450,000 should be substituted for the sum of £580,500 (former currency) allowed to White & Company, Solicitors, by the learned Taxing Master.
The learned Taxing Master allowed two "Brief Fees" each to Senior Counsel and Junior Counsel retained by White & Co., Solicitors, to represent Deputy Rabbitte and Deputy MacGiolla before the Tribunal. It is contended on behalf of the Applicant that in all the circumstances and in particular having regard to the limited nature of the representation granted by the Tribunal to Deputy Rabbitte and Deputy MacGiolla, the fees allowed by the learned Taxing Master greatly exceeded the amount which a reasonably careful and reasonably prudent solicitor would have agreed to pay. The Applicant further submits that the allowance by the Taxing Master to Counsel of separate Brief Fees of £10,500 and £7,000 in respect of the "Privilege from Disclosing Sources" issue was wholly erroneous.
For the reasons which I have already given in disallowing the additional Instructions Fee allowed by the learned Taxing Master to White & Co., Solicitors, in respect of this same issue, I am satisfied that this separate "Brief Fee" allowed to Counsel must also be disallowed. This is not to suggest that the Taxing Master should have disregarded entirely the painstaking legal research which I find on the evidence, was undertaken by Counsel in dealing with this issue and the skill and judgment employed by Counsel in presenting the argument before the Tribunal. This question of the right of Deputy Rabbitte and Deputy MacGiolla to decline to disclose to the Tribunal the identity of the persons who furnished information to them which was the source of the allegations made by them in Daíl Éireann was, I am satisfied, at all times underlying and central to every aspect of their permitted participation before the Tribunal.
Counsel were retained to represent Deputy Rabbitte and Deputy MacGiolla before the Tribunal of Inquiry into the Beef Processing Industry, but as the evidence establishes, not on all issues. In my judgment all of the issues in respect of which they were instructed to appear or advise constituted part of a single retainer for which a single Brief Fee was payable. Any other approach would in the circumstances result in multiple payments being made not alone to Counsel but also to the instructing Solicitor for the same work. By way of an example Counsel could not properly have advised on the Privilege issue without becoming fully familiar with facts with which they would also have to be fully aware in order to deal with the other aspects of their retainer. In my judgment the learned Taxing Master was not alone entitled but was required to have proper regard to this work, but as an integral part of the work of properly representing Deputy Rabbitte and Deputy MacGiolla before the Tribunal at a single Brief Fee calculated by Counsel to include this work and which a reasonably careful and reasonably prudent solicitor would agree to pay.
Adding the two allowed "Brief Fees" together, the overall Brief Fee allowed by the learned Taxing Master was £63,00 to Senior Counsel and £42,000 to Junior Counsel. The Brief Fee paid to Senior Counsel in the hearing of the liability issue in Best v. Wellcome Foundation Ltd. & Ors. was £52,500. A Brief Fee covers all work done by Counsel in preparation for representing the Clients at the hearing and the attendance of Counsel at the first day of the hearing. It was admitted by all parties to this appeal that the issue concerning the Export Credit Insurance Scheme, and in particular the investigation by the Tribunal into whether the then Government in the allocation of Export Credit Insurance wrongly favoured the Goodman Group of Companies to the serious disadvantage of other Beef Exporters was a very difficult and complex matter which took up almost one third of the entire sitting time of the Tribunal. There can be no doubt from the Judgment of Hamilton, P., (as he then was) in the High Court and the judgment of Finlay, C.J., in the Supreme Court, that the liability issue in Best v. Wellcome Foundation Ltd. & Ors. was also a difficult and complex matter [see (1993) 3 I.R. 421 at 427 and 444].
Leading Counsel for the plaintiff in Best v. Wellcome Foundation & Ors., would have had to prepare and deliver an opening address to the Court. While Counsel for Deputy Rabbitte and Deputy MacGiolla did not have to perform a similar task before the Tribunal, on the evidence they spent several days assisting Mr. White in setting out and least three days in settling First Person Witness Statements of 788 Folios which was requested by the Tribunal and had to be prepared with the utmost expedition. I think that I may properly infer, having regard to the complexities of the issues in both matters, that Counsel were not called upon to examine a witness in chief or by way of cross examination on the first day of the hearing in either matter. For the hearing of the liability issue in Best v. Wellcome Foundation Ltd. & Ors., Counsel for the plaintiff obviously had to prepare for the examination in chief of many expert and lay witnesses. As regards the investigation before the Tribunal, I find on the evidence that Counsel had to become fully familiar with and to prepare for the evidence of Deputy Rabbitte and Deputy MacGiolla in the light of all the allegations made by them. Counsel in both matters had to prepare to cross examine many witnesses of the very highest standing in their professions and particular areas of expertise and in the Tribunal many persons of enormous public prestige and holders of high public office. In both matters Counsel had to prepare final submissions. In both matters Counsel had to peruse and assimilate large masses of disclosed documents and records, often of a very technical nature. As I have already found, on the evidence, the volume of documents on the Export Credit Insurance Scheme issue before the Tribunal was in my judgment substantially greater than that in the liability issue in Best v. Wellcome Foundation Ltd. & Ors., which was itself very great. On the evidence, I find that it was also necessary for Counsel representing Deputy Rabbitte and Deputy MacGiolla to be fully familiar with the contents of the 452 Books of Transcript of the evidence given before the Tribunal.
It is clear from the Judgments on the liability issue in Best v. Wellcome Foundation Ltd. & Ors. to which I have already adverted, that many difficult issues of law or of mixed fact and law, were raised by that litigation. The issue of privilege from having to disclose sources of information also raised difficult and complex problems of Constitutional and Common Law which I find on the evidence required very extensive legal research and analysis by Counsel representing Deputy Rabbitte and Deputy MacGiolla. It is apparent from the decisions of Hamilton, P., (as he then was), and Finlay, C.J., in the liability issue in Best v. Wellcome Foundation & Ors. and the decision of Barron, J., on the costs appeal in respect of the assessment of damages aspect of that case, - to all of which I have already adverted, - that Counsel for the Plaintiff, Kenneth James Best, had to read and endeavour to fully comprehend many very technical reports. I am satisfied on the evidence and I so find, that Counsel for Deputy Rabbitte and Deputy MacGiolla similarly had to grapple with many technical reports during the investigation by the Tribunal of the allegations with respect to the alleged abuses of the Export Credit Insurance Scheme. I am satisfied I may fairly infer that in matters of such complexity and importance, both teams of Counsel had to meet frequently before the commencement of the respective matters to discuss and to plan their strategy and tactics for the hearing. The period of total commitment, the so called "lock-in period" required of Counsel in the Export Credit Insurance Scheme issue before the Tribunal was almost double that required of Counsel in both the High Court and the Supreme Court in the Liability Issue in Best v. Wellcome Foundation Ltd. & Ors.
Looking at all these matters in my judgment the total sum of £62,000 allowed by the learned Taxing Master to Senior Counsel and the total sum of £42,000 allowed by the learned Taxing Master to Junior Counsel could not be said to be such that it would have been unreasonable for a reasonably careful and reasonably prudent solicitor to have agreed such a fee. That being so, I find that the fees of £62,000 and £42,000 are not unjust to the Applicant and should not be disturbed.
Cases referred to in argument:
Attorney General (McGarry) v. Sligo County Council [1991] 1 IR 99 (extract)
Attorney General v. Simpson [1958] IR 329
Best v. Wellcome Foundation [1996] 1 ILRM 34
Commissioners of Irish Lights v. Maxwell Weldon & Darley (Unreported, Barron J., 15th May, 1996).
Commissioners of Irish Lights v. Maxwell Weldon & Darley [1997] 3 IR 475 (Supreme Court)
Condon v. CIE (Unreported, Barrington J. 11th February, 1988)
Crotty v. An Taoiseach and Others [1990] ILRM 617
Crown Chemical Company v. Cork County Council [1984] ILRM 554
Dunne v. Fox (Unreported, Laffoy J., 3rd April, 1998)
Dunne v. O'Neill [1974] IR 181
Haughey, In re [1971] IR 217
Heffernan v. Heffernan(Unreported, Gannon J., 2nd December, 1974)
Irish Trust Bank Limited v. Central Bank of Ireland [1976-77] ILRM 50
Kelly v. Breen [1978] ILRM 63
K Security v. Ireland (Unreported, Gannon J., 15th July, 1977)
McGrory v. Express Newspapers Plc (Unreported, Murphy J., 21st July, 1995)
Minister for Finance v. Taxing Master Flynn (Unreported, Carroll J., 9th February, 1996)
Murphy v. Dublin Corporation (Unreported, Butler J., 31st July, 1979)
H.P. v. W.P. [1985] ILRM 527
Robb v. Connor 9 IR Eq 373
Smyth v. Tunney (No. 2) [1993] 1 IR 451
Smith v. Tunney (Unreported, Flood J., 27th February, 1995)
Smith v. Tunney [1999] 1 ILRM 211
State (Gallagher Shatter & Co.) v. DeValera [1986] ILRM 3
State (Gallagher Shatter & Co.) v. DeValera [1987] IR 55
Staunton v. Durkan [1996] 2 ILRM 509
Tobin and Twomey Services v. Kerry Foods Ltd. (Unreported, Kelly J. 3rd December, 1998)
The Minister for Finance v. Laurence Goodman, Goodman International and Subsidiary Companies (Laffoy J., 8th October, 1999)
Dick Spring T.D. and Barry Desmond T.D. v. Minister for Finance (Smyth, J., 29th May, 2000 Unreported)
Superquinn Ltd. v. Bray U.D.C. (Kearns, J., 5th May, 2000, Unreported)
Bloomer v. Incorporated Law Society of Ireland (Geoghegan, J., 3rd December, 1999, Unreported)
Din v. Wandsworth London BC (No. 3) [1983] 2 All ER 841
Edington v. Fitzmaurice [1885] WN 170
Hunt v. East Dorset Health Authority [1992] 2 All ER 539
In re Solicitors [1982] 1 WLE 745
Loveday v. Renton and Another (No. 2) [1992] 23 All ER 184
Simpson's Motor Sales (London) Ltd. v. Hendon Corporation (No. 2) [1965] 1 WLR 112
Smyth v. Wills (1995) 34 WR 30
Treasury Solicitor v. Regester [1978] 2 All ER 920
