LEGAL SUBMISSION OF PATRICK KELLY

Transcription

1 Re High Court Record Number MCA SUMMONS TO TAX THE HIGH COURT BETWEEN PATRICK KELLY APPELLANT AND THE INFORMATION COMMISSIONER RESPONDENT LEGAL SUBMISSION OF PATRICK KELLY PATRICK KELLY 11 Deansrath Avenue Clondalkin Dublin 22

2 1. At paragraph 7.4 of its Report, the Legal Costs Working Group referred to a practice direction of the Taxing Masters requiring written submissions to be lodged on behalf of a party in advance of a taxation ; the written submissions must, according to the practice direction include a list and details of decided cases or other relevant documents upon which the submissions are based (Legal Costs Working Group, 2005, p.43). 2. These are my written submissions to the Taxing Master. Copies of the decided cases and other relevant documents upon which the submissions are based are provided in the form of a separate book of authorities. 3. These written submissions should be read in conjunction with my affidavit to the Taxing Master regarding the taxation of my expenses. 4. In an article titled Taxing times, published in the Law Society Gazette in 2000 (volume 94, number 1), Tony Halpin and Taxing Master James Flynn wrote (p.24): The taxation of costs is the settlement of the amounts payable by a party or parties in respect of the costs in an action, cause or matter which is assessed by a taxing master. In order to achieve a fair and just amount, the taxing master relies on the information submitted to support the costs that are claimed. 5. [T]he costs allowed, Halpin and Flynn (2000, p.25) explained, are confined to those which are deemed necessary or proper for the attainment of justice or for enforcing or defending the rights of the party whose costs are being taxed. 6. In a section of their article titled Necessary and proper costs, Halpin and Flynn (2000, p.25-26) wrote: the justification of a cost is exclusively dependent upon the part it has played in the litigation or matter under taxation [emphasis added]. 7. The allowance or disallowance of an item may in great measure depend on the information provided at taxation, they said (Halpin and Flynn, 2000, p.24). 1

3 8. Referring in their article to the decision of the Taxing Master in Superwood Holdings plc & Ors v. Sun Alliance and London Assurance plc & Ors (17 December 1997) Halpin and Flynn (2000, p.25) said: The taxing master emphasised that it is recognised by the courts that to determine a matter it must be determined upon evidence, no matter how small, meagre or diminutive it is. 9. Paragraph 4.8 of the Report of the Legal Costs Working Group describes the taxation process : Bills of costs are taxed at an oral hearing. Although a solicitor for a party, or a personal litigant if unrepresented, is entitled to participate in the taxation, the hearing is usually attended by the legal costs accountants respectively retained by the party seeking the costs and the party liable to pay the costs, i.e. the party opposing the bill. To assist in taxing the bill, the Taxing Master has power to summon and examine witnesses, require books, papers and other documentation to be produced, and generally direct any party to the taxation to do such acts as he may consider necessary. 10. Taxing Master James Flynn, in an article, Solicitors costs and the client, published in the Law Society Gazette in 2002 (volume 96, number 6) wrote (Flynn, 2002, p.20): The process of taxation exists to ensure fairness to both sides, and it does so by subjecting the successful party s itemised bill of costs to the scrutiny of the taxing master in the presence of the unsuccessful party, where items are allowed, reduced or disallowed, as the case may be, with the objective of justifying the costs of the litigation [emphasis added]. 11. In my High Court case I was a litigant in person. The Respondent has been ORDERED by the High Court to pay to me my expenses on the basis of a one day hearing when taxed and ascertained in default of agreement. 2

4 12. In Agassi v. HM Inspector of Taxes [2005] EWCA Civ 1507 (December 2, 2005) the English Court of Appeal discussed, at paragraph 23, the definition of litigant in person : In Jonathan Alexander Ltd v Proctor [1996] 1 WLR 518, at 523D Hirst LJ referred to the ordinary meaning, as I understand it, of the description litigant in person, viz an unrepresented individual. Peter Gibson LJ said at page 525G: A litigant in person in ordinary parlance is a party to litigation who represents himself by appearing in court himself. If someone other than himself represents him, then notwithstanding that that other person is his agent, that party is not a litigant in person. 13. At paragraph 9 of Sisu and Others v. Tucker [2005] EWHC 2321 (Ch), [2006] 2 Costs LR 26 (October 28, 2005) the Chancery Division of the English High Court quoted the judgement of Brett MR in the English Court of Appeal in The London Scottish Benefit Society v. Chorley (1884)13 QBD 872 (CA), at page 875: When an ordinary litigant appears in person, he is paid only for costs out of pocket. 14. In Buckland v. Watts [1970] 1 QB 27 at page 35 the English Court of Appeal repeated: a layman who is not a skilled legal person can recover his out-ofpocket expenses. 15. On the Cambridge Dictionaries Online website ( the plural noun out-of-pocket expenses is defined as money spent on things such as food and travel. 16. In Sisu and Others v. Tucker [2005] EWHC 2321 (Ch), [2006] 2 Costs LR 26 (October 28, 2005) the Chancery Division of the English High Court commented, at paragraph 10: The principle that a litigant in person who is a solicitor can recover costs as if he had employed a solicitor, except in respect of items which the fact of his acting directly renders unnecessary lends support to the proposition that a litigant in person who has some other professional skill can recover in respect of the time spent exercising that skill. 3

5 17. I am a qualified teacher. I qualified as a teacher in the age range in England in I have a PGCE from the University of Gloucestershire and Qualified Teacher Status (QTS) from the General Teaching Council for England. I also have a BA (Hons) in Social Policy and Administration from the University of Portsmouth (2001). I have, as well, a postgraduate certificate (PG Cert) in Professional Communication from Sheffield Hallam University (2007). 18. Can I, I wonder, recover in respect of the time [I] spent exercising my professional skill? In the Concise Oxford English Dictionary (11 th ed., p.1351) the noun skill is defined as the ability to do something well; expertise or dexterity. Perhaps I can recover in respect of the time [I] spent exercising my professional skill as a qualified teacher? 19. A copy of Qualifying to teach: Professional Standards for Qualified Teacher Status, published in 2002 by the then Department for Education and Skills in England is included in my book of authorities. As is stated on page 2 of Qualifying to teach: The Standards for the award of Qualified Teacher Status are outcome statements that set out what a trainee teacher must know, understand and be able to do to be awarded QTS [Qualified Teacher Status]. 20. I was awarded Qualified Teacher Status in 2004 because I met all the Standards. 21. In Sisu and Others v. Tucker [2005] EWHC 2321 (Ch), [2006] 2 Costs LR 26 (October 28, 2005) the Chancery Division of the English High Court quoted, at paragraph 9, what Bowen LJ said in The London Scottish Benefit Society v Chorley (1884) 13 QBD 872 (CA), at page 877: Professional skill and labour are recognised and can be measured by the law Professional skill, when it is bestowed, is accordingly allowed for in taxing a bill of costs. 22. The Chancery Division of the High Court pointed out, at paragraph 14, that in Buckland v. Watts [1970] 1 QB 27 Sir Gordon Willmer: 4

6 in an interchange with counsel (see at page 34D)...observed that Bowen LJ in The London Scottish Benefit Society case had said that professional skill can be measured and recognised by law. In relation to other skills, he [i.e. Sir Gordon Willmer] says this: Other professional people, who become involved in litigation and conduct their own cases, may recover something in respect of their own professional skill in so far as they qualify as witnesses and are called as such. Nobody else, however, except a solicitor, has even been held entitled to make any charge, as I understand it, in respect of the exercise of professional legal skill. [emphasis added]. 23. Mr Justice Warren of the Chancery Division of the English High Court then said, at paragraph 15: I do not read Sir Gordon Willmer as saying that a professional person, other than a solicitor, can only recover in respect of his own professional skill only to the extent that they qualify as witnesses and are called as such. Rather, he gives that as an example. What he relies on (as can be seen from the interchange mentioned) is the judgment of Bowen LJ and the reasoning of that, as I have said, applies to the exercise by any professional of the skill which he has. 24. In Malkinson v. Trim [2002] EWCA Civ 1273 (September 13, 2002) the English Court of Appeal noted, at paragraph 11: an ordinary litigant that is to say, a litigant who is not a solicitor cannot recover, as costs, compensation for the expenditure of his own time and trouble. 25. But at paragraph 30 of Sisu and Others v. Tucker [2005] EWHC 2321 (Ch), [2006] 2 Costs LR 26 (October 28, 2005) the Chancery Division of the English High Court explained: it is to be noted that [in Malkinson v. Trim] Chadwick LJ takes the reference to an ordinary litigant as being to a litigant who is not a solicitor. I think that he includes the words to indicate what the judges in The London Scottish Benefit Society case meant by an ordinary litigant. It 5

7 was not necessary for him to address whether, in the 21 st century, a litigant who is a professional person other than a solicitor, is in all respects to be treated in the same way as an ordinary litigant in that sense; nor did he do so [emphasis added]. 26. [A] litigant who is a professional person other than a solicitor ought not to be in all respects treated in the same way as an ordinary litigant in that sense. 27. I am a litigant who is a professional person other than a solicitor. I am a qualified teacher. I have been a qualified teacher since Worryingly, at paragraph 7.3 of its Report the Legal Costs Working Group criticized what it called the lack of transparency in respect of the process of taxation (2005, p.43): In the absence of a review by the court of a Taxing Master s decision, when the Taxing Master will be required to produce a report to the court, reasons for decisions on individual taxations are not published. As has been remarked in decisions of the courts in reviewing taxations, comparison of the taxation outcomes in similar cases is a valid means of determining the costs allowable in a particular case. The absence from the public record of details of taxation decisions, however concisely stated, or of any register of taxation outcomes recording key factors in the outcome, has created a significant information deficit which severely limits public awareness, and awareness within the legal profession, of the likely levels at which bills of costs in different categories of proceedings or stages within proceedings, may tax. 29. On the Predictability of the taxation process the Legal Costs Working Group said, at paragraphs 7.6 and 7.7 of its Report (2005, p.44): The approach to taxation of costs, as mandated by legislation, rules of court and case-law, makes the outcome of the process difficult to predict, for legal practitioners and lay persons alike. Given the nature of legal work in the area of contentious business, some degree of uncertainty as to the precise amount which will ultimately be chargeable in respect of a legal dispute is inevitable. The absence of data on previously taxed cases compounds this difficulty. 6

8 No express set of taxation policies or guidelines exists to indicate how the criteria governing the exercise of discretion by the Taxing Master should be applied for particular types of action or application. The absence of such guidance hampers solicitors in advising clients on the extent of their likely exposure to costs and renders the process of predicting or settling costs as an alternative to taxation more difficult. These disadvantages outweigh any benefit which the current very flexible approach to exercise of judgment may confer in an individual case. 30. In the Report of the Legal Costs Working Group (2005, p.45) some light was also shed on the role of legal costs accountants in the taxation process, at paragraph 7.11: due to the specialised nature of the work and lack of information about costs levels and practices on taxation the drawing and supporting or opposing of bills on taxation has, in the Taxing Masters Office at least, become the almost exclusive domain of a small group of legal costs accountants. No reference to the legal costs accountant appears in the legislation or rules relating to taxation, and he or she attends the taxation as agent of the solicitor concerned. A percentage commission in the range of 7-10% of the solicitor s profit costs (generally, the solicitor s instructions fee) will, generally, be charged by the legal costs accountant. This charge is not recoverable against the other party and will inevitably form part of the solicitor s cost base and, as such, will ultimately be passed on to the solicitor s cliental. 31. According to the Report of the Legal Costs Working Group (2005, p.75) in 2003 the Taxing Masters certified 519 (five hundred and nineteen) Bills and allowed Costs of 25,759,931 (twenty five million seven hundred and fifty nine thousand nine hundred and thirty one euro). And that was five years ago. The 10,595 I am seeking seems a rather paltry figure in comparison. It is, in fact 0.04 percent of what the Taxing Masters allowed in Zero point zero four percent. 32. The High Court does, of course, have a role in reviewing taxation. 33. As the Supreme Court said in Cronin (nee O Connell) v. Astra Business Systems Ltd [2004] IESC 30 (May 14, 2004): 7

9 The role of the court in reviewing taxation is governed by section 27(3) of the Courts and Court Officers Act 1995 which provides as follows: The High Court may review a decision of a Taxing Master of the High Court made in the exercise of his or her powers under this section, to allow or disallow any costs, charges, fees or expenses provided only that the High Court is satisfied that the Taxing Master has erred as to amount of the allowance or disallowance so that the decision of the Taxing Master is unjust. 34. In its Conclusions the Supreme Court said: The review of taxation by the High Court is governed by section 27(3) of the Courts and Court Officers Act As was pointed out by McCracken J. in Smyth v. Tunney (No. 2) [1999] 1 ILRM 211 in the passage quoted above 1 such a review entails a consideration not alone whether the Taxing Master has erred but also whether such an error has led to injustice. 35. In Quinn v. South Eastern Health Board [2005] IEHC 399 (November 30, 2005) the High Court (Peart J) said of Section 27 of the Courts and Court Officers Act 1995: this Court can intervene only if it is satisfied (1) that the Taxing Master has erred as to the amount of the allowance or disallowance, and (2) that this error is such as to amount to being unjust. I prefer to avoid the use of the term error of principle. It is not how the section is expressed. In addition, it seems to me that the subsection permits this court to intervene in circumstances where although it is satisfied that the Taxing Master went about his task in a way that was correct in every way, taking into account properly all relevant matters and excluding irrelevant matters, including a close examination of the work done and required to be done and so forth, and in that way committing no error in principle as such, the Court nevertheless may form the view that the figure actually allowed or disallowed is, by being either too high or too low, unjust to the party seeking the review. 1 Smyth v. Tunney (No. 2) [1999] 1 ILRM 211, at page 213: The principle upon which I must act, therefore, is not simply to decide whether the Taxing Master erred, but also, if I am to alter his decision, I must find that his taxation was unjust. I cannot approach this issue on the basis of trying to assess what costs I would have awarded had I been the Taxing Master. 8

10 36. In Boyne v. Dublin Bus/Bus Atha Cliath & Anor [2006] IEHC 209 (June 14, 2006) the High Court (Gilligan J) said: There is abundant authority which makes it clear that the High Court is entitled to review the decision of the Taxing Master if the Court is satisfied that an error has been shown which results in an injustice and to substitute for the decision of the Taxing Master an order which achieves a just result. 37. Gilligan J went on to quote the judgement of Geoghegan J in Bloomer v. Incorporated Law Society of Ireland (No. 2) [2000] 1 IR 383 who had said, at page 387: In considering whether the Taxing Master erred, I must see whether in arriving at his decision he had regard or excessive regard to some factor which he either should not have had any regard to or to which he should have had much less regard. I then have to consider whether there was some significant factor to which the Taxing Master ought to have regard and to which he had either had no regard at all or insufficient regard. Those are examples of errors of principle in consideration of the facts but of course the court must also consider whether the Taxing Master has fallen into error in either law or jurisdiction. If this court finds that the Taxing Master has erred in the sense described, this court then has to address the second question which is whether the taxation was unjust. In relation to any given item in the taxation which is in controversy, the justice or injustice of the decision will be determined by the amount. ALL OF WHICH IS RESPECTFULLY SUBMITTED May 31, 2008 Patrick Kelly 9