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1. On these four applications the Minister for Finance (the Minister) seeks Orders under Order 99, Rule 38(3) of the Rules of the Superior Courts, 1986 (the Rules) to review the taxation of the costs of Laurence Goodman and Goodman International and Subsidiary Companies (Goodman) of appearing before the Tribunal of Inquiry colloquially known as the Beef Tribunal as to certain items. Broadly speaking the items in issue are counsels' fees, including brief fees, refresher fees, fees in relation to non-sitting days and fees in relation to preparation of submissions, solicitors' general instructions fees and disbursements to experts and advisers.

2. The taxation of the Bills of Costs submitted by Goodman commenced before Master Flynn on 24th October, 1995. It was interrupted by an application to this Court for Judicial Review and following the judgment of Carroll J. delivered on 9th February, 1996 on the Judicial Review it was resumed on 8th May, 1996. Master Flynn ruled on the taxation on 30th July, 1996. Objections were carried in on behalf of the Minister. The objections were heard by Master Flynn who ruled on the objections on 18th April, 1997. It is common case that in every sense these taxations are the biggest taxations in the history of the State. The amounts in issue on this review aggregate in excess of £7 million.

3. Order 99, Rule 38(3) provides as follows:-

4. Order 99, Rule 38(4) deals with the procedural aspects of the review and provides as follows:-

5. The Minister's applications were properly initiated by four notices of motion which identified the items in the Bills of Costs in respect of which review is sought. While the applications came before the Court in a correct procedural manner in accordance with the Rules, it became apparent after the commencement of the hearing that the matters were not structured in a way which was conducive to efficient processing and that there were major divergences between the parties which had not been defined. It became apparent that the areas of potential conflict included matters as fundamental as the proper scope of the review and the standard of review to be applied. The impact, if any, of Section 27 of the Courts and Court Officers Act, 1995 (the Act of 1995) also emerged as a potential issue. Other areas of potential dispute which emerged were whether it is open to the Minister to raise on the review arguments which were not made to the Taxing Master, where the burden of proof lies on the review and whether oral evidence should be admitted on the review. I invited submissions from the parties on all of the foregoing issues. I am grateful to the legal teams on both sides for responding promptly with comprehensive written and oral submissions.

6. Having considered the submissions I have come to the conclusion that it would not be prudent to make any determination at this juncture on any of the issues other than the question whether oral evidence should be admitted, because any such determination made at this juncture would be made in the abstract which I believe would not be advisable. Before dealing with the question of evidence, however, there are two observations I wish to make.

7. First, it was submitted on behalf of the Minister that Section 27 of the Act of 1995, which came into force on 15th December, 1995 after the commencement of the taxation before the Taxing Master, has no application. As I understand it, Counsel for Goodman do not dispute this assertion. It is clear that the provisions of Section 27 featured to some extent in the proceedings before and in the deliberations of the Taxing Master. It is not to be assumed that the Court accepts at this juncture that Section 27 has no application.

8. Secondly, as to the burden of proof, the Minister acknowledges that he carries the burden of disturbing the decisions of the Taxing Master as to the appropriate allowances and to that extent that issue is settled.

9. Returning to the question of whether oral evidence should be admitted on the review, I think it is important in the first instance to consider what happened before the Taxing Master. On the taxation and on the hearing of the objections, Goodman was represented by Arnold Lowe and Paul Behan, Legal Cost Accountants. The Minister was represented by Peter Fitzpatrick, Legal Cost Accountant. The Taxing Master had before him the Bills of Costs and the documentation and other data generated by Goodman's legal team and other advisers in connection with Goodman's appearance before the Beef Tribunal. That physical evidence which was before the Taxing Master will be before the Court insofar as it is necessary to produce it. I have been given a foretaste of that physical evidence by being brought by the parties to the two rooms in the Law Society Building in which the documentation is stored in connection with the review. As I understand it, the Legal Cost Accountants conducted the taxation and the hearing of the objections in the usual manner, in essence as advocates on behalf of their respective clients. No viva voce evidence was adduced on the taxation. However, on the hearing of the objections the Taxing Master invoked his power under Order 99, Rule 25 which provides that the Taxing Master may, for the purpose of taxing a Bill of Costs, inter alia, summon and examine witnesses. By letter dated 28th February, 1997 the Taxing Master intimated that he required a member of the firm of Solicitors acting for Goodman, A&L Goodbody, to give evidence concerning the amount of the solicitors' instructions fee. The Taxing Master set out in the letter the questions which he considered needed to be answered. In response to that letter Mrs. Caroline Preston, a partner in the firm of A&L Goodbody, was examined by the Taxing Master on 20th March, 1997 and cross-examined by Mr. Fitzpatrick on behalf of the Minister.

10. Transcripts of all of the proceedings before the Taxing Master are available, that is to say, the proceedings on the taxation and the proceedings on the hearing of the objections, including the testimony of Mrs. Preston. This is an unusual feature of this review.

11. The Minister seeks leave to adduce oral evidence on this review. It was submitted on behalf of the Minister that it is manifest from the terms of Rule 38(4) that the Court has jurisdiction to receive oral evidence. While it was acknowledged that there appears to be no recorded decision where the principles by which the Court's jurisdiction is to be exercised have been considered at any length, the following reasons were advanced on behalf of the Minister in support of his application:-

12. I would surmise that there was no transcript of the proceedings before the Taxing Master available on the review in Dunne -v- O'Neill . The passage as quoted above suggests that, in determining the review, Gannon J. only had regard to evidence which corresponded with the evidence given before the Taxing Master.

13. In relation to the reference to the decision of Budd J. in In Re. Walshe , (1962) 96 I.L.T.R. 173 referred to in that passage, it was submitted on behalf of the Minister that that is an authority which is not apposite now because it predated the 1962 Rules. I wish to make it clear that I have not formed any view as to whether that decision should be followed, particularly in the context of whether it is open to the Minister to raise arguments which were not made to the Taxing Master. If and when this issue arises I will rule on it by reference to the specific argument in question.

14. It is interesting to note that Gannon J. also quoted from a judgment of Finlay P. in The State (Boylan) -v- Governor of St. Patrick's , (unreported 13th December 1982) and it is clear from the quotation that the President had received evidence on the review of taxation in that case.

15. The foregoing reasons advanced on behalf of the Minister were bolstered by the somewhat intimidatory suggestion that while the Court cannot be faulted for receiving evidence, conversely it may be if it does not do so, unless the parties concur.

16. When I queried what evidence the Minister proposed to lead if given leave to do so, I was told that it was proposed to call Mr. Fitzpatrick to testify in relation to the solicitors' instructions fees and to testify in relation to the taxation in Bula Limited -v- Tara Mines Limited & Ors. , a taxation which post-dated the taxation in the instant case and which is the subject of a Judicial Review in this Court and also of a review of taxation. It was also submitted that the Court should direct that Mrs. Preston should make herself available for cross-examination by Counsel for the Minister.

17. Goodman strenuously opposes the reception of evidence on the review. It was submitted that it is clear from the wording of Rule 38(4) that the review should be conducted on the same evidence as was before the Taxing Master. Additional evidence is only admissible and should only be received, it was submitted, in exceptional cases. It was suggested that in determining whether additional evidence should be received, the Court should have regard to the principles enunciated by the Supreme Court in Murphy -v- The Minister for Defence , (1991) 2 I.R. 161 in relation to the admission of fresh evidence on an appeal to that Court, namely, whether the evidence sought to be adduced was in existence at the time of the trial but could not have been discovered with the exercise of reasonable diligence, whether the evidence is such that it would probably have an important influence on the outcome of the trial and whether the evidence is credible. Counsel for Goodman pointed to a remark by Kenny J. in Lavan -v- Walsh , (1967) I.R. 129 (at page 132) to the effect that "the same evidence is before it [the Court] as was before the Taxing Master" as emphasising the importance of the review forum having the same evidence as the Taxing Master had.

18. While it was acknowledged that evidence has been admitted in some recent reviews of taxation, it was submitted that this approach represents a deviation from the practice which seems to have prevailed before 1967 and is a practice dependent in part upon a belief that the Court enjoys a wider jurisdiction on review than it properly does, a narrow jurisdiction being contended for by Goodman. It was also suggested that in the past the absence of a transcript of the proceedings before the Taxing Master may have been a crucial factor in the reception of evidence on the review. It was urged on behalf of Goodman that it would be particularly inappropriate to receive evidence on this review because there was consensus before the Taxing Master that this taxation was unique and beyond comparison and that, accordingly, the reception of evidence could not be justified on the basis that the Court would wish to hear evidence of comparable taxations. In relation to the evidence which the Minister would propose to lead on the taxation in Bula Limited -v- Tara Mines Limited , it was submitted that, for various reasons, this taxation is not a comparator.

19. If I were approaching the construction of Rule 38(4) and its application to this review in vacuo, I think I would conclude that further evidence should not be received on the review. The wording of Rule 38(4) is emphatic: it mandates that the review shall be heard and determined upon the evidence which shall have been brought in before the Taxing Master and it mandates that no further evidence shall be received upon the hearing of the review unless the Court shall otherwise direct. It seems to me that it is implicit in that provision that the reception of evidence is intended to be the exception to the normal rule, justifiable by exceptional circumstances. I can discern no exceptional circumstance in the instant case. There is a full transcript available of all the proceedings before the Taxing Master which lasted, on my estimation, for 23 days and were conducted by experienced Legal Cost Accountants on each side instructed by solicitors.

20. However, I am determining whether oral evidence should be admitted on this review having regard to the provisions of Rule 38(4) against the background of a large body of precedent which suggests that the established jurisprudence of this Court is that over the last quarter of a century oral evidence has been received on the hearing of taxation reviews almost as a matter of course. I am also determining the issue in the context of a total absence of any authority in which an application to adduce further evidence was rejected on a reasoned basis, although it was acknowledged on behalf of the Minister that there were reviews in which this Court refused to receive oral evidence. It may be that in many cases the parties consented to oral evidence being received on the review or that, at least, no objection was advanced. It may be that in many of the cases, indeed, perhaps, most of the cases, there was no record of the proceedings before the Taxing Master and that this factor influenced the reception of the evidence. These are matters of conjecture. The fact is that the cases I have catalogued earlier comprise many of the leading cases on the costs taxation code. Indeed I think it is not an exaggeration to say that the decisions of the High Court in Dunne -v- O'Neill and Kelly -v- Breen are the foundations of the modern taxation code and have been approved of by the Supreme Court and followed time and again. I detect no hint in any of the authorities in which the leading cases were considered that there was anything untoward in the admission of oral evidence on the review hearings.

21. Therefore, following what appears to have been the predominant practice in the recent past, I propose allowing the Minister to call Mr. Fitzpatrick to testify. Goodman will, of course, also be entitled to call the evidence of a legal cost accountant in response. I will not direct the attendance of Mrs. Preston for cross-examination or the attendance of any other witness, as it has not been demonstrated that I have any jurisdiction to do so. What weight, if any, I attach to the further evidence to be adduced will only be determined when all of the evidence is in and I have heard all of the submissions, including submissions as to evaluation of the evidence. Similarly, a determination on the relevance or otherwise of the taxation in Bula Limited -v- Tara Mines Limited must be postponed until that issue arises.

22. Finally, given that I have postponed coming to any conclusion on the fundamental issues of the scope and standard of the review, I consider the approach I propose adopting to be the prudent approach.