BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!

1. This judgment is concerned with four applications by the Applicant pursuant to Order 99, Rule 38(3) of the Rules of the Superior Courts, 1986 (the Rules) to review the taxation of certain items allowed by the Taxing Master on the taxation of the following costs, namely:-

2. All of the foregoing costs were taxed by the Taxing Master pursuant to two Orders dated 29th July, 1994 made by the Tribunal of Inquiry, which has come to be known colloquially as the Beef Tribunal, which was established by Order of the Minister for Agriculture and Food made on 31st May, 1991 pursuant to the resolution of Dail Eireann passed on 24th May, 1991 and a resolution of Seanad Eireann passed on 29th May, 1991.

3. By an Order dated 29th July, 1994, having recited, inter alia that on 21st June, 1991 the Companies had been granted authorisation under Section 2(b) of the Tribunals of Inquiry (Evidence) Act, 1921 (the Act of 1921) by the Tribunal to be represented before it by counsel instructed by solicitor, and the effect of Section 6 of the Act of 1979, the Tribunal ordered as follows:-

4. An Order in similar terms, but subject to one variation, was made in favour of Mr. Goodman who had also been granted representation before the Tribunal on 21st June, 1991. The variation was that the Order in favour of Mr. Goodman provided that his costs of employing a solicitor and two counsel should be taxed on a party and party basis.

5. During the course of the Tribunal objection had been taken on behalf of the State to the firm of solicitors retained by the Companies and Mr. Goodman, A&L Goodbody, acting for the Companies and Mr. Goodman in connection with allegations which the Tribunal was investigating in relation to export credit insurance. Following that objection, another firm of solicitors, Rory O'Donnell & Co. was retained in connection with export credit issues and that firm instructed the same team of barristers as had been instructed by A&L Goodbody in connection with general issues. A consequence of the splitting of representation was that separate bills of costs were presented and there were separate taxations in relation to representation in connection with export credit general issues and the other issues which arose before the Tribunal.

6. The taxation of the two bills of costs presented by the Companies and Mr. Goodman in connection with general issues commenced before the Taxing Master on 24th October, 1995. It was interrupted by an Application for judicial review in this Court entitled "The Minister for Finance, Applicant v. Taxing Master James Flynn, Respondent and Goodman International and Laurence Goodman, Notice Parties (Record No. 292 J.R. of 1995)" (the Judicial Review proceedings) in which judgment was delivered by Carroll J. on 9th February, 1996. The taxation was resumed on 8th May, 1996 and continued until 13th June, 1996. The Taxing Master ruled on the taxation in a comprehensive Report running to 206 pages on 30th July, 1996.

7. The taxation of the two bills of costs in connection with export credit issues commenced before the Taxing Master on 17th June, 1996 and he gave his ruling on 30th July, 1996 in a Report of that date.

8. Objections to allowances made by the Taxing Master on both taxations were carried in by the Minister for Finance (the Minister) pursuant to Order 99, Rule 38(1) of the Rules. The objections were supported by written submissions, to which the Companies and Mr. Goodman responded in written replies. The hearing of the objections commenced before the Taxing Master on 30th January, 1997 and concluded on 4th February, 1997. The Taxing Master ruled on the objections on 18th April, 1997 in two Reports of that date in which he disallowed all of the objections and affirmed his allowances.

9. On the taxation, the Companies and Mr. Goodman were represented by two legal cost accountants, Arnold Lowe and Paul Behan, instructed by solicitors, and the Minister was represented by a legal cost accountant, Peter Fitzpatrick, instructed by a solicitor. No viva voce evidence was adduced on the taxation. However, the Taxing Master had before him the bills of costs and the documentation and other data generated by the legal teams and other advisers in connection with the representation of the Companies and Mr. Goodman before the Tribunal. Some viva voce evidence was adduced on the hearing of the objections and, in so far as it is necessary, I will refer to it later.

10. This review has been sought under Order 99, Rule 38(3) of the Rules which provides as follows:-

11. Rule 38(4) provides that the application shall be made by motion on notice and further provides as follows:-

12. The items in the bills of costs at issue on this review are as follows:-

13. The disbursements other than by way of counsels' fees were apportioned between the general issues bills and the export credit issues bills on a 70:30 basis.

14. In the course of the hearing of the review, a number of issues of principle arose on some of which the parties offered very divergent views. The issues which arose related to:-

15. On the issue of the proper scope and the standard of the review, it was submitted on behalf of the Companies and Mr. Goodman that the proper approach for the Court to adopt on the review is as follows:-

16. The jurisdiction of this Court to review the determination of the Taxing Master on objections carried in before him to the taxation is derived from Order 99, rule 38(3), which I have already quoted in part. The nature and range of costs allowable on taxation, whether by the Taxing Master or by the Court on review, is also governed by Order 99. In the case of taxation on a party and party basis, Order 99, rule 10(2) provides that on a taxation on that basis:-

17. Order 99, Rule 37(18) precludes the allowance of any costs:-

18. The provisions of the Rules, which I have quoted, replicate the corresponding provisions of the Rules of the Superior Courts, 1962. Over the past 30 years, a consistent line of authority has emerged as to the proper approach to be adopted by this Court in applying those provisions.

19. Kenny J. then went on to consider the statutorily prescribed qualification for office of Taxing Master in the following passage at page 133-4:-

20. The observations of Kenny J. were considered in Dunne -v- O'Neill , [1974] I.R. 180. At issue in that case was the disallowance by the Taxing Master of disbursements made by the plaintiff's solicitor for fees to counsel. On the changes wrought by the 1962 rules, Gannon J. stated as follows (at page 191):-

21. It was submitted on behalf of the Companies and Mr. Goodman that, not only do the changes introduced in the 1962 Rules not warrant such a conclusion, but that Kenny J. at no point in his judgment expressly stated that the pre-existing requirement of an error in principle had been abrogated.

22. While it is true that the in passage from the judgment in Lavan -v- Walsh (No. 2) which I have quoted above, Kenny J. did not expressly state that, on an application to review since the 1962 Rules were introduced, the Court is obliged to consider and adjudicate upon the amounts allowed by the Taxing Master, for any item irrespective of whether the Taxing Master erred in principle or not, in my view, it is beyond question that that was what he intended to convey. He had embarked on his comparison of the 1962 Rules and the earlier Rules having stated that the many cases in Ireland on the earlier Rules established that the Court would not interfere with the amounts allowed by the Taxing Master on the taxation of a bill between party and party or between a solicitor and own client "unless it were shown that he had made a mistake in principle" and he cited the relevant authorities.

23. Earlier in his judgment, at page 189, Gannon J. had stated that it is not part of the function of the Taxing Master on taxation, or of the Court on review, to examine the nature or quality of the work done by or required of counsel or to assess, by measurement of fees, the value of counsel's work.

24. The next landmark decision in the formulation of the modern jurisprudence on taxation of costs was the decision of Hamilton J., as he then was, in Kelly -v- Breen , [1978] I.L.R.M. 63. Both solicitor's disbursements by way of fees to counsel and the solicitor's general instruction fee were at issue on that review. In the context of the review of the general instruction fee, Hamilton J. considered the judgment of Parke J. in Irish Trust Bank Limited -v- Central Bank of Ireland , [1976-7] I.L.R.M. 50, the decision of Kenny J. in Lavan -v- Walsh (No. 2) and the decision of Gannon J. in Dunne -v- O'Neill and he stated as follows (at page 71):-

25. In the context of the review of counsel's fees, Hamilton J. stated that the general principles laid down by Gannon J. in Dunne -v- O'Neill were correct and he went on to set out nine principles applicable to the taxation of counsel's fees, stating as follows in the ninth (at page 69):-

26. Prior to the enactment of the Act of 1995, the principles enunciated in Dunne -v- O'Neill and Kelly -v- Breen were consistently followed and, indeed, approved by the Supreme Court. In The State Richard F. (Gallagher Shatter & Company) -v- De Valera , [1991] 2 I.R. 198, Finlay C.J. stated that those decisions had accurately and to a very large extent comprehensively set out the principles which were applicable to the function of the Taxing Master in relation to disbursements made by a solicitor on behalf of his client by way of counsel's fees. While the authorities have continued to acknowledge the special knowledge and experience of the Taxing Master in relation to costs, there has been no suggestion that under the Rules now in force the Court is only entitled to intervene where the Taxing Master proceeded upon a wrong principle.

27. Recent authorities in relation to taxations which pre-dated the Act of 1995 have emphasised the different function of the Taxing Master, and of this Court on review, in relation to the solicitor's general instruction fee and solicitor's disbursements. In the case of the solicitor's general instruction fee the function of the Taxing Master is to determine the appropriate fee ( Best -v- Wellcome Foundation Limited , [1996] 1 I.L.R.M. 34; Smyth -v- Tunney , (No. 2) [1993] 1 I.R. 451). In the case of all solicitor's disbursements, not just disbursements by way of counsel's fees, the function is to determine whether no solicitor acting reasonably carefully and reasonably prudently, based on his experience in the course of practice, would have made the disbursement in question ( Staunton -v- Durkan , [1996] 2 I.L.R.M. 509).

28. Up to the enactment of the Act of 1995, Order 99 of the Rules and its precursors and judicial decisions on the provisions of the Rules comprised a comprehensive and self-contained code and body of jurisprudence on taxation of costs. It was submitted on behalf of the Companies and Mr. Goodman that the Court should have regard to recent authorities which manifest judicial restraint in relation to the decisions of expert administrative tribunals, for example, a chief appeals officer under the social welfare code ( Henry Denny & Sons (Ireland) Limited -v- Minister for Social Welfare , [1998] 1 IR 34) or an expert statutory regulator, for example, the Competition Authority ( M&J Gleeson & Company & Ors. -v- Competition Authority , [1999] 1 I.L.R.M. 401) or the Director of Telecommunications ( Orange Communications Limited -v- Director of Telecommunications , [1999] 2 ILRM 81). Where, as in the case of reviews of taxation under Order 99, rule 38(3), there is an established body of jurisprudence directly in point, in my view, it is unnecessary and, indeed, it would be inappropriate, to apply principles extrapolated from a novel and developing jurisprudence which is founded on a variety of statutory appeals from decisions of statutory tribunals and statutory regulators.

29. I can see no basis in principle and I am not satisfied that there is any pertinent authority for the proposition that on review under Order 99, Rule 38(3) the Court should only interfere with the decision of the Taxing Master if satisfied that he acted unreasonably in the sense of being clearly wrong. The alternative proposition, that the Court should only interfere if satisfied that the Taxing Master has erred in principle, is contrary to the established jurisprudence of this Court which has been approved of by the Supreme Court. Rejection of the two propositions advanced on behalf of the Companies and Mr. Goodman as to the scope of the power of the Court to conduct a review does not amount to an assertion that the Court has a complete and untrammelled power to substitute its view as to the proper level of costs for that of the Taxing Master. Nor is it an assertion that the standard to be applied is no more exacting than that the Court does not agree with the Taxing Master's conclusions. Nor is it difficult to reconcile with the concept of curial deference and the requirements that this Court have due regard to the superior knowledge and experience of the Taxing Master in matters of costs.

30. On the authorities, it is clear that the Court is entitled to review, in the sense of alter, the Taxing Master's determination if it is shown that he has erred in principle or, alternatively, that, although applying correct principles, he has arrived at the incorrect amount for any item in the bill. It is in considering whether error has been shown, whether error of principle or error of quantification, that judicial restraint comes into play. However, if, applying the standard of proof applicable to civil matters, proof on the balance of probabilities, the Court is satisfied that error has been shown, it must intervene and, as required by Order 99, rule 38(3), substitute for the decision of the Taxing Master an order which achieves a just result.

31. It is common case that, as pursuant to the Orders of the Tribunal the costs were being taxed on a party and party basis, at the taxation the onus was on the Companies and Mr. Goodman to establish that the costs and expenses claimed were necessary or proper for the attainment of justice or for enforcing or defending their rights and were not otherwise excluded by the provisions of Order 99. However, it is acknowledged on behalf of the Minister that on this review the Minister bears the burden of disturbing the decision of the Taxing Master as to the appropriate allowances.

32. At the commencement of the review the Minister sought leave to adduce oral evidence on the review. Counsel for the Companies and Mr. Goodman strenuously opposed the reception of oral evidence on the review. Having reserved judgment I ruled on the application on 19th May, 1999. In my ruling, in which I have summarised the submissions made by the parties and in which I set out the reasons for the course I proposed to adopt, I ruled that the Minister should be allowed to call Mr. Fitzpatrick to testify and that the Companies and Mr. Goodman would be entitled to call the evidence of a legal cost accountant in response. On the resumption of the review, Mr. Fitzpatrick testified on behalf of the Minister and Mr. Behan testified on behalf of the Companies and Mr. Goodman.

33. On the hearing of the review the Minister sought to argue that the Taxing Master had misinformed himself as to the nature of the proceedings before the Tribunal and as to the content of the significant portion of the solicitors' workload as described in the bills of costs. For instance, the Minister sought to argue that the evidence disclosed that time had been devoted to matters ordinarily allowable in the taxation of party and party costs in conventional litigation but which were not necessary or proper in a tribunal context, matters which in the special circumstances of the Tribunal served merely to duplicate the task of the Tribunal itself and which were, therefore, surplus, and, by definition, not necessary for the vindication of the rights of the Companies and Mr. Goodman. The Minister sought to argue that on the review the totality of hours recorded by A&L Goodbody should be subject to a disallowance of 20% to account for all unnecessary expenditure, including unnecessary expenditure which I am satisfied was not contended for before the Taxing Master.

34. Counsel for the Companies and Mr. Goodman objected to these grounds, which had not been advanced before the Taxing Master on the hearing of the objections in support of the contention he had erred, being advanced on the review and relied on the decision in In re. Kevin J. Walshe , (1962) 96 I.L.T.R. 173 and the decision in O'Sullivan -v- Hughes , [1986] I.L.R.M. 555 in support of the objection.

35. There is no discernible material difference between the sub-rules considered by Budd J. and the corresponding provisions of the current Rules. For instance, as was the case in the pre-1962 Rules, Order 99, rule 38 (1) requires the party carrying in objections before the Taxing Master to produce objections in writing "specifying therein by a list in a short and concise form the items, or parts thereof, objected to and the grounds and reasons for such objections", which is a verbatim replication of the corresponding provision of the pre-1962 rules.

36. In the course of the hearing of the review I ruled that the arguments sought to be advanced, which were grounds and reasons which had not been advanced before the Taxing Master could not be entertained on the hearing of the review.

37. The Act of 1995 came into force on 15th December, 1995.

38. In his Report on the taxation of the bills of costs in relation to the general issues, the Taxing Master recorded that it had been submitted to him on behalf of the Minister that, as the Act of 1995 came into effect after the commencement of the taxation, it did not apply to the taxation. The Taxing Master accepted this submission and went on to say:-

39. In his Report on the objections the Taxing Master stated as follows:-

40. The Taxing Master adopted a different approach in relation to the application of the Act of 1995 to the taxation of the bills of costs in relation to export credit issues. In his Report on the taxation he stated as follows:-

41. The Taxing Master concluded that Report with the following statement:-

42. The Taxing Master did not allude to the Act of 1995 in his Report on the objections.

43. Counsel for the parties were only able to point to two cases in which Section 27 has been judicially considered and in both cases the focus was on sub-section (3) of Section 27. In Smyth -v- Tunney [1999] 1 ILRM 211, McCracken J., having quoted sub-section (3), stated as follows at page 213:-

44. While this point was not addressed by Counsel, it seems to me that sub-sections (1) and (2) of section 27 have introduced a fundamental change in relation to the function of the Taxing Master in the taxation of solicitor's disbursements, including counsel's fees. Before the coming into operation of the Act of 1995 it was no part of the function of the Taxing Master to make a value judgment as to what the disbursements should be. However, by virtue of sub-section (1) it is part of his function to examine the nature and extent of work to which disbursements relate and to determine the value of the work done or the service rendered. By virtue of sub-section (2) his function is to assess what he considers in his discretion to be a fair and reasonable allowance for the work done or service rendered.

45. The Minister's position on the review was that to apply section 27 to a taxation which commenced before the section came into force, and which was conducted on foot of orders for costs made almost eighteen months before the section came into force, would be to give retrospective application to section 27 and would disrupt the respective rights, liabilities and expectations of the parties and, that being the case, sub-section (3) of section 27 ought not to be applied to the review. It was further argued that, in any event, as a matter of construction of sub-section (3), that sub-section only applies to the review of a decision of the Taxing Master which has been made by the Taxing Master in the exercise of his powers under section 27. Moreover, it was argued, as a matter of principle, that a review can only be based upon rules that were applicable at the time the decision which is being reviewed was made. Therefore, it was submitted that this Court should conduct the review without regard to section 27.

46. Suggesting that the burden on the Minister of disturbing the determination of the Taxing Master would be more onerous if the Act of 1995 was applied, Counsel for the Companies and Mr. Goodman indicated that they were not prepared to take a stance on the interpretation of section 27 adverse to the Minister's stance lest on an appeal from this Court it should be decided that the wrong standard was applied. They agreed to the Minister's proposition that the court should approach the review on the basis that the Act of 1995 does not apply.

47. It should perhaps be noted that the Minister's position is that, in any event, he has discharged the acknowledged more onerous burden imposed by section 27(3), whereas the position adopted by the Companies and Mr. Goodman is that the Minister has not even discharged the lesser burden imposed by the pre-Act of 1995 regime. Neither this approach nor the submissions made by the parties resolve the dilemma with which I am faced, namely, that the Taxing Master has stated that he did not apply the Act of 1995 in the taxation of the bills of costs in relation to the general issues, but he did in the taxation of the bills of costs in relation to the export credit issues. Having said that, as a matter of common sense and practicality, it would be absurd to adopt a different approach to the taxation of the disbursements in the bills relating to general issues and the bills relating to export credit issues. Although Counsel's fees were allocated between the bills in absolute terms rather than on a percentage basis, I infer from the evidence that what were charged were composite fees for the totality of the work undertaken by Counsel in representing the Companies and Mr. Goodman before the Tribunal. The solution, it seems to me, is to adopt the pragmatic approach that the same regime applies to the totality of the disbursements and that the relevant regime is a pre-1995 Act regime contended for by the Minister and accepted by the Companies and Mr. Goodman.

48. Before considering the individual items in issue on this review, it is necessary to comment on some general matters raised by the parties on the review.

49. First, the underlying rationale in the constitutional context of section 6 of the Act of 1979 was explained as follows in Goodman -v- Hamilton (No.1) [1992] 2 I.R. 542 in the following passage in the judgment of McCarthy J. at page 605:-

50. On the taxation of costs awarded under section 6, it is wholly irrelevant what the outcome of the Tribunal was. It is wholly irrelevant whether the party for the costs "won" the Tribunal, in the sense that allegations in which he was implicated were not established, or "lost" the Tribunal, in the sense that he was the maker of allegations which were not established.

51. Secondly, there was some debate as to the role of a lawyer appearing for a party who has been granted representation before a Tribunal. It was suggested by Counsel for the Minister that the Taxing Master wrongly placed emphasis on assumed "duality of purpose" of representation before the Tribunal which it was assumed involved preparing the client's case and also assisting the Tribunal in its work. Counsel for the Company found support for the proposition that such "duality of purpose" exists in the judgment of Gavan Duffy J. in In re Greene & Sons and Dublin Corporation [1940] I.R. 484, a case involving the taxation of the costs which Dublin Corporation had agreed to pay on a solicitor client basis to parties who had been represented before a Tribunal of Inquiry established under the Act of 1921. In holding that the costs in issue were properly incurred Gavan Duffy J. stated (at page 493) that they were properly incurred:-

52. The costs awarded to the Companies and Mr. Goodman were awarded pursuant to the provisions of section 6 of the Act of 1979. They were awarded because the parties had been granted representation by solicitor and counsel before the Tribunal and for the reasons stated in the following passage from the Report of the Tribunal:-

53. The Companies and Mr. Goodman were granted representation by the solicitor and counsel before the Tribunal because it was necessary to do so in order to vindicate their rights. The role of the lawyers appearing for them was to ensure that their rights were protected and vindicated and that they were properly apprised of their obligations under the law. The role of the lawyers in representing their clients before the Tribunal was no different to the role they would perform in representing the client before a court. In my view, it is a misconception to perceive a lawyer representing a party before a tribunal as having some particular function of assisting a tribunal in carrying out its remit.

54. Thirdly, it is well established that, while on a party and party taxation the party for the costs is not entitled to a full indemnity in respect of all costs and expenses which have actually been incurred by him, the basis of party and party costs is one of indemnity [ A.G. (McGarry) -v- Sligo County Council (No.2) [1989] I.L.R.M. 785; Kelly -v- Breen [1978] I.L.R.M. 63).

55. Fourthly, in applying the Rules as far as practicable, as the Orders of the Tribunal require, in the taxation of the costs of the Companies and Goodman, it is proper to take account of the differences between the process in a court in a lis inter partes and the Tribunal process. In the former, the issues are normally well defined by the pleadings and by interlocutory applications before the trial begins and the relevant documentation has normally been identified through the discovery process. Once a trial begins, it is not normally punctuated by non-sitting days. Counsel for the Companies and Mr. Goodman contended that, unlike the position which prevails in a conventional action in Court, the legal teams acting for the Companies and Mr. Goodman before the Tribunal found themselves in a process which was without precedent or parallel and the framework for which was broad terms of reference which resulted in a multiplicity of allegations. They had to deal with allegations which arose for the first time during the course of the proceedings and 90% of the documentation which affected them was produced after the hearings commenced. The difficulties which the legal teams encountered were magnified, it was submitted, because of pressure of time and the rapid pace at which the proceedings moved and the indeterminate length and the indeterminate focus of the Tribunal, both of which changed during its course. It is not controverted by the Minister that the legal teams representing the Companies and Mr. Goodman had a uniquely difficult task. At issue is how the uniquely difficult task translates into costs in accordance with the Orders of the Tribunal and the law.

56. In the bills of costs presented the amount claimed in respect of the general instruction fee for A&L Goodbody was £3,250,000. The total amount allowed on the taxation was £3,197,975 which comprised the following components:-

57. In his ruling on the objections the Taxing Master disallowed the Minister's objection and affirmed the allowance he had made on taxation. On this review a disallowance of £1,550,000 was sought by the Minister which, if granted, would have the effect of roughly halving the Taxing Master's allowance. I find it necessary to consider in some depth the proceedings in relation to this item before the Taxing Master, both on the taxation and on the hearing of the objections, by reference to the transcript of the proceedings.

58. Before doing so, I think it appropriate to quote Order 99, rule 37(22)(ii) which gives guidance to the Taxing Master as to the manner in which he should exercise his discretion in relation to solicitor's items and provides as follows:-

59. In relation to the instruction fee of A&L Goodbody the case for the Companies and Mr. Goodman on the taxation was presented by Mr. Lowe over four days straddling May and June 1996. At that stage the scheduled items had already been dealt with and Mr. Behan had presented the case on behalf of the Companies and Mr. Goodman in relation to counsels' fees, so that the Taxing Master has already acquired a considerable amount of knowledge of the volume of work on the part of A&L Goodbody which was being claimed for.

60. Before outlining the manner in which the case for the Companies and Mr. Goodman was presented to the Taxing Master I should perhaps record that I have noted Mr. Lowe's caveat at the outset addressed to "anybody else who may be reading the transcript" that his shortened summary did not give a full picture of what was involved and that it would be necessary to read the bills of costs and possibly even look at the documentation itself to gain any sort of insight, rather than just read the transcript in isolation.

61. Mr. Lowe went through each of the topics headlined in the bills of costs. These topics, which numbered 135, are listed by the Taxing Master in his Report on the taxation. In relation to each topic, Mr. Lowe summarised the tasks which A&L Goodbody had to undertake and he identified the main fee earners involved in those tasks.

62. Having gone through all of the topics, Mr. Lowe then gave the Taxing Master the total number of recorded hours for each fee earner involved, although he had indicated at the outset that it was not possible to indicate the time any particular fee earner had been involved in connection with any particular topic. The total number of recorded hours was set out by the Taxing Master in his Report on the taxation and the breakdown according to category of fee earner is as follows:-

63. Partners: 7,429.6 hours

64. Associates: 9,450.1 hours

65. Assistant Solicitors: 726.1 hours

66. Apprentices: 438.6 hours

67. As I understand it, the amount of £3,250,000 claimed in the bills of costs for A&L Goodbody's general instruction fee was the assessment of Mr. Lowe, as a very experienced legal cost accountant, of the appropriate fee measured on a party and party basis for the work carried out by A&L Goodbody, the recorded hours, which Mr. Lowe suggested were "on the low side", being only one factor. However, Mr. Lowe submitted that the recorded hours were a real basis for attempting to begin to assess what he suggested was "a real and proper instruction fee". Acknowledging that the Rules do not provide for an hourly rate basis for remunerating solicitors, Mr. Lowe submitted that he was able to demonstrate the reasonableness of the instruction fee by reference to professions of roughly equal standing. Specifically, Mr. Lowe referred the Taxing Master to cases in which the costs of firms of accountants making non-part discovery had been taxed and in which rates equivalent to charge out rates for mergers and acquisitions work had been allowed. In Mercantile Credit Company of Ireland Limited -v- Heelan , the hourly rates allowed were: £200 for a partner master, £150 for a director and £96 for a manager. In Dunne -v- Fox a partner had been allowed £200 an hour. It was submitted that the task of a firm of accountants in making discovery did not come anywhere near the level of responsibility, complexity, novelty and importance which A&L Goodbody bore in relation to the Beef Tribunal, which it was submitted merited a considerably higher hourly rate than £200. Mr. Lowe concluded his submission on the appropriate hourly rate as follows:-

68. On behalf of the Minister, Mr. Fitzpatrick submitted that all of the work undertaken by A&L Goodbody and manifested in the bills of costs was not necessary or proper within the meaning of Order 99, Rule 10(2). He gave some examples, for instance, he suggested that information gathering for the purposes of cross-examination was excessive. However, he did not dispute that the recorded hours were actually worked and he accepted that the recorded hours were correct. He put the following hourly rates to the Taxing Master:-

69. Assistant Solicitor: £100

70. Applying those rates to the recorded hours he came up with a figure of £2,343,135. However, on the basis of his belief that there was a certain amount of work which was neither necessary nor proper and was due to over-caution, he drew back from that figure to the figure of £2,000,000, which he submitted was the appropriate fee for all the work done by A&L Goodbody on behalf of the Companies and Mr. Goodman. Mr. Fitzpatrick made it clear to the Taxing Master in his submissions on the taxation that he considered that using the "hourly system" was the proper approach. As to the hourly rate he proposed, he stated that he had telephoned his own accountant to get some idea of what "professional people charge". Mr. Fitzpatrick stated that his understanding of the hourly rate was that it was based on the cost of running the office and on getting some profit. He then submitted as follows:-

71. Mr. Fitzpatrick submitted that there was nothing wrong with his hourly rate and that it took into consideration "all the extra factors". Later Mr. Fitzpatrick stated that his hourly rate was not "picked out of the sky" but was based on his experience and the information he got from his accountant.

72. In reply, Mr. Lowe submitted that under Order 99 the entitlement of A&L Goodbody would not be fairly or properly met by assessing the hourly rate of £200 an hour for a partner, despite the fact that the work related to the years 1991 to 1993.

73. In ruling on the taxation the Taxing Master, in arriving at the appropriate amount for the work done, broke the work down into three components, namely:-

74. He valued each component separately and aggregated the three components.

75. In relation to time, he took an hourly rate which he applied to all of the recorded hours. He did not expressly address Mr. Fitzpatrick's submission that some of the time recorded was neither necessary nor proper. In relation to the hourly rate he stated as follows:-

76. These rates gave a total of £2,997,975 for the time component of the instruction fee.

77. In relation to the skill, knowledge, complexity and difficulty component, having outlined the nature of the task borne by A&L Goodbody, the Taxing Master concluded as follows:-

78. The Taxing Master described the effort required of A&L Goodbody as "mammoth" and the responsibility which rested on that firm as "enormous". In relation to valuing the responsibility and effort component he stated as follows:-

79. In relation to the totality of the instruction fee, the Taxing Master stated that he was convinced that it was appropriate and sufficient to remunerate the Solicitors for the extent, level and volume of work which the case required and which was in fact rendered and that his total figure, £3,197,975, represented "a fair and reasonable remuneration for the work done".

80. The Minister's objections to the Taxing Master's allowance in respect of the instruction fee of A&L Goodbody and the grounds and reasons advanced for the objections on the review before the Taxing Master may be summarised as follows:-

81. During the course of the hearing of the objections the Taxing Master required that a member of the firm of A&L Goodbody give evidence pursuant to Order 99, Rule 25 of the Rules, which, inter alia , empowers the Taxing Master to summon and examine witnesses, concerning the amount of the instruction fee. He stipulated that the appropriate person should be a senior member of the firm with the requisite knowledge. By letter dated 28th February, 1997 to Mr. Lowe the Taxing Master outlined the questions that needed to be answered.

82. Pursuant to the requirement of the Taxing Master, Mrs. Caroline Preston, the partner in A&L Goodbody, who had overall charge of the representation of the Companies and Mr. Goodman at the Beef Tribunal, testified. The questions set out in the letter were put to Mrs. Preston by the Taxing Master and she was then cross-examined by Mr. Fitzpatrick.

83. Mrs. Preston testified that the purpose of the time recording by her firm was to enable the firm to make a judgment as to what was the appropriate amount of funding that was required on an interim or cash-flow basis throughout the very long case in issue. It also allowed the firm to assess what grade or experience of solicitor was doing what work and that would be pertinent in drawing the final bill on a solicitor/client basis ultimately. The basis on which personnel were chosen at the outset was to have a mix of experience so that more junior solicitors could deal with more mundane work, leaving the more complicated or experienced work for those with greater experience. While the firm anticipated that the Tribunal would be over a lot earlier than it was, the arrangement the firm came to with the client in relation to interim on account funding was not in any way affected by the firm's anticipation of the time that the case would take. The team which was involved in servicing the Companies and Mr. Goodman could not indulge in any other work whatever and the firm undoubtedly lost custom to competitors as a result. In relation to the quantum of the internal rates of charge applied to each of the personnel covered by the bills of costs, Mrs. Preston stated that the rates used for the on account funding were £180 in the case of a partner, £138 in the case of an associate, £98 in the case of an assistant and £52 in the case of an apprentice. She stressed that the rates applied in the first instance were average rates. They were "not cast in stone". They were a guide. She suggested that in the circumstances they were probably not relevant to the assessment of party and party costs. The rates in question took no account of the intangible profit element that the firm was entitled to, nor did they take account of the extraordinarily unsociable hours worked, the disruption to the office or the loss of other clients. She suggested that those issues amongst others set out in the Rules were not included in the internal accounting rate. The reason the firm did not charge a specific rate was that for this sort of work the costs would always be assessed by legal cost accountants. Her view and that of her colleagues was that an hourly rate was not appropriate for that type of litigation.

84. The Taxing Master ruled out a question Mr. Fitzpatrick sought to put to Mrs. Preston as to the manner in which the partner rate of £180 was arrived at, on the ground that to allow it would put the firm at an unfair disadvantage in the market place. In relation to the rate of £180 per hour, Mrs. Preston stated that it was the effective rate that made up the firm's on account payments throughout the Tribunal. It was never fixed nor, indeed, ever agreed upon as such. Subsequently, she stressed that the rate in question was an internal management and budgetary rate. It was not an hourly rate which was charged to the client.

85. The only other evidence adduced on the hearing of the objections which is of interest in relation to the quantification of the instruction fee is that Mr. Damien McCarthy, a partner in Craig Gardner/Price Waterhouse who testified in connection with one of the items in relation to experts and advisers which is in issue on this review. He testified that his firm's charge-out rate for him, as a partner, in 1991 was £180 per hour and that rate would have gone up to £190 per hour in the price review by 1992/1993.

86. In his Report on the objections, the Taxing Master stated that the bills of costs were an adequate and convincing summary of the work that was done. Furthermore, he had examined in detail the other material presented, which included counsels' advices on proofs, which demonstrated the extent and amplitude of the work that had to be done. Despite the Minister's objection, he considered that the recorded hours were proper and necessary in ensuring an adequate and proper representation for the Company and Mr. Goodman. The Taxing Master stated that he considered the use of an hourly rate to be the most appropriate method in arriving at a fair and reasonable sum in the case under consideration. He stated:-

87. In relation to the rates given in evidence by Mrs. Preston, the Taxing Master stated as follows:-

88. In relation to the appropriate partner rate, he stated as follows:-

89. He was satisfied that the appropriate categories of fee earners had been employed in the work. It had not been demonstrated why some of the hours should be determined to be excessive and, in his opinion, the time expended was just and reasonable and was allowable in total on a party and party basis.

90. The Taxing Master rejected the argument that the inclusion of the "uplifts" in the instruction fee amounted to duplication. The "uplifts" were not applied to the instruction fee but to the time element of the instruction fee. The Taxing Master observed that the "uplifts" (£200,000) represented 0.5% of the time factor (£2,997,975), which was not correct, the correct percentage being 6.7%.

91. The only evidence adduced on behalf of the Minister on this review was the evidence of Mr. Fitzpatrick, which was confined to the instruction fee properly payable to A&L Goodbody and, in the main, addressed two topics, the proper hourly rates to be applied in the quantification of the instruction fee and the appropriateness of the determination of the Taxing Master in Bula Limited (in receivership) -v- Tara Mines Limited & Others as a comparator. In relation to the Bula taxation, the Court was informed that Master Flynn gave his Ruling on the taxation on 25th March, 1998. Objections were carried in by the paying parties to the allowances made by the Taxing Master but, by a written ruling dated 9th July, 1998, the objections were disallowed save in respect of a small number of disbursements which are not material. Subsequently, the paying parties applied to this Court for a review of taxation pursuant to Order 99, Rule 38(3). These applications have not yet being determined. In addition, certain of the Defendants have instituted judicial review proceedings challenging the determination of the Taxing Master, so far as it relates to the allocation of the "costs of trial". This Judicial Review application is also pending in this Court. No challenge to the sums allowable by the Taxing Master has been taken by Tara Mines Limited and, accordingly, his allowances, if varied, would be varied downward rather than upward.

92. In relation to the hourly rate of £150 for a partner which he had suggested to the Taxing Master as an appropriate rate, Mr. Fitzpatrick testified that that rate was based on his experience of dealing with solicitors and with cost issues over almost 30 years, over which period he got to know what the market forces were and what was happening in the market place. On the basis of his experience, £150 per hour would have been reasonable remuneration at the relevant time.

93. In relation to the Bula taxation, the instruction fee of McCann Fitzgerald, the firm which represented Tara Mines Limited, was assessed not on the basis of an hourly rate but as a lump sum. The Taxing Master had allowed the claim, £1,513,650 in full. Mr. Fitzpatrick gave some details of the Bula case. It had been initiated by plenary summons on 17th November, 1986 and the final order in the High Court was made on 24th February, 1997. It had been at hearing for 277 days from 14th December, 1993 to 29th November, 1996. By contrast A&L Goodbody were in attendance at the Tribunal for 147 days over a period of just over 2 years. There was a huge amount of documentation in the Bula case, almost as much as in the Beef Tribunal. The trial was preceded by interlocutory and procedural applications in relation to discovery and interrogatories, some of which were appealed to the Supreme Court. Mr. Fitzpatrick acknowledged that the scheduled items in A&L Goodbody's bills taxed at £108,845, whereas the scheduled items in the bill of Tara Mines Limited taxed at only £8,250 and, as a general proposition, up to the time of the Goodman taxation scheduled items, even in a big case, would not have taxed at any more than £2,000. He also acknowledged that the duration of the taxation of the costs of Tara Mines Limited before the Taxing Master, three days, was considerably shorter than the taxation of Goodman's costs, which lasted for 19 days.

94. The only evidence adduced on behalf of the Companies and Mr. Goodman on the review was that of Mr. Behan and his evidence was confined to the appropriateness of the Bula taxation as a comparator. The basis of his opinion seems to have been primarily a comparison of the preparation of the bills of costs and the taxation process in the two cases. He alluded to the disparity in the allowances for scheduled items and in the length of the taxation and he made the point that on the taxation Tara Mines Limited was opposed by two plaintiff factions. He also pointed to the difficulties created in the Goodman case by the lack of pleadings, the broad terms of reference and the vastness of the documentation.

95. On the review, Counsel for the Minister challenged the appropriateness of the instruction fee allowed by the Taxing Master on four fronts: the hours allowed; the hourly rate applied; "uplifting" the time element to account for skill, knowledge, complexity, difficulty and for responsibility and effort; and as to its overall level. The objections and supporting submissions made to the Taxing Master on the hearing of the objections were reiterated and the following additional submissions were made:-

96. As I have stated, the Minister translated his case that the Taxing Master's assessment of the instruction fee should be altered into money terms on the basis that £1,550,000 of the instruction fee allowed should be disallowed comprising the following elements:-

97. Counsel for the Companies and Mr. Goodman submitted that the instruction fee allowed by the Taxing Master was the appropriate fee for the task, that it properly reflected all of the considerations which the Taxing Master was required to have regard to under the Rules and on the basis of the authorities. In relation to the Minister's specific challenges it was submitted as follows:-

98. What the Taxing Master did in the instant case, it was urged, was to compensate separately in respect of each of the three core criteria identified by Barron J. in the foregoing passage and in doing so he avoided duplication or double accounting. As to the Minister's contention that the matters covered by the "uplifts" were already included in the assessment of the hourly rate and the hours worked, the uplifts did no more than reflect the reality and the overwhelming task imposed on the Companies and Mr. Goodman by the Tribunal and, in particular, the specific skill involved in fulfilling the solicitor's role of "stage managing" all of the aspects of representing the clients in proceedings in which there were more disputed issues of fact cumulatively than in any single action to have ever come before the Courts in this jurisdiction.

99. Before dealing with the Minister's specific challenges to the Taxing Master's determination of the instruction fee there are a number of general comments to be made. In Smyth -v- Tunney, [1993] 1 I.R. 451, Murphy J. highlighted the difficulties inherent in the determination of a solicitor's instruction fee in the following passage in his judgment (at page 473):-

100. The difficulties are magnified manifoldly in the instant case, which it is common case is unique and unprecedented. That very uniqueness has created difficulties for everyone involved in the process: for Mr. Lowe and Mr. Behan in drawing the Bills of Cost and in costing the various elements in the bills and, in particular, in putting structure on and evaluating the amorphous body of work which is reflected in the instruction fee, which they did meticulously; for Mr. Fitzpatrick, who on behalf of the paying party, the Minister, has had to assess whether all of the work claimed for was necessary or proper or due to overcaution in the unique task of representing the Companies and Mr. Goodman before the Beef Tribunal; for the Taxing Master who has had to adjudicate between the hugely disparate positions adopted by the Companies and Mr. Goodman, on the one hand, and the Minister, on the other hand. That very uniqueness has also resulted in Mr. Fitzpatrick, on behalf of the Minister, advocating that the Taxing Master adopt an unusual approach to the quantification of the instruction fee, by applying hourly rates to hours properly allowable and the Taxing Master incorporating that approach in his quantification. Given the uniqueness and the difficulty of the process of quantifying the appropriate instruction fee, it is legitimately a matter for comment that is remarkable that only £52,025 of the claim of £3,250,000, or 1.6%, was not established by the parties for the costs.

101. It is not in issue that the hours recorded were worked by the solicitors in connection with the representation of the Companies and Mr. Goodman before the Tribunal. What the Minister has put in issue is whether all of the work reflected by the recorded hours was necessary or proper or reflected over-caution so as not to be recoverable on a taxation on a party and party basis. As a matter of common sense, it would seem likely that, given the scope and enormity of the task undertaken by the solicitors, there would be some element of non recoverable work, of luxury, involved and some element of allocating work to fee earners at too senior a level. On the taxation, the Taxing Master was obviously satisfied that the Companies and Mr. Goodman had discharged the onus of proof in relation to all of the hours claimed and he rejected the Minister's objections on the review before him. The question which must be addressed on this review is whether the Minister has, either in a general way or as regards specifics, discharged the onus of disturbing that finding.

102. On the hearing of the objections, Mr. Fitzpatrick gave some examples of matters that might not be regarded as being necessary or proper within the meaning of Order 99, Rule 10(2). The examples were the following:-

103. If one were to accept the foregoing as examples of work which was neither necessary nor proper (and I am of the view that the work at (b) is not recoverable as legal costs on taxation on a party and party basis) or, alternatively, which amounted to over-caution, while there is no scientific basis on which one could conclude that there should be a disallowance on the instruction fee of the order reflected by the "drawback" from £2.343m to £2m which Mr. Fitzpatrick suggested, nonetheless, regard must be had to Mr. Fitzpatrick's expertise. In relation to the reduction in the order of 20% suggested on this review, there is no evidence on which one could justify a percentage reduction of that magnitude in terms of money or hours and the suggestion that such a reduction, which would be arbitrary, should be made lacks credibility, particularly in the light of the stance adopted by the Minister at the hearing of the objections, even allowing that the 20% reduction was intended to encompass unnecessary expenditure not contended for before the Taxing Master. Nonetheless, in view of the fact that 93.5% of the recorded hours were recorded at partner or associate level, it must be reasonable to infer that there was some significant degree of over-caution.

104. While Mr. Lowe initially suggested the use of the hourly rate as a guide, it is my understanding that there is general consensus that it is appropriate to adopt the hourly rate approach. The dispute between the parties is as to the appropriate hourly rate in the circumstances of this case.

105. Having regard to the authorities, in my view, the appropriate instruction fee, if it is to be quantified on the basis of an hourly rate for allowable work, must be based on a fair and reasonable market rate for work of the type undertaken in representing the client, if there be such, or for work of comparable urgency, complexity, difficulty, importance and responsibility at the time the work was performed. Unfortunately, neither side adduced evidence before the Taxing Master or on the review as to the going rate charged by solicitors for work of the type in issue here or comparable work in the period from May 1991 to July 1993. While there is evidence to suggest that it was not usual to time-cost litigation work, it can hardly be the case that in that period the bigger firms of solicitors practising in Ireland did not charge on a time basis for heavy commercial work, for instance, company flotation work or mergers and acquisitions work.

106. The evidence available from which one has to deduce the appropriate hourly rate is anything but helpful. First, the analogy of the hourly rate of £200 allowed to accountants on taxation under Order 31, Rule 29 is not helpful because, as Counsel for the Companies and Mr. Goodman acknowledged, the basis of taxation under Order 31, Rule 29 is different from the party and party basis. No details were given of when the work taxed in Mercantile Credit Company of Ireland Limited -v- Heelan was performed. In relation to Dunne -v- Fox , the work in question was done in October/November 1994, much later than the work in issue here and the evidence of Mr. McCarthy casts doubt on the reliability of this comparison as a measure of accountants' hourly charge-out rate in 1991. Secondly, while I have Mr. Lowe's expert opinion that the appropriate hourly rate for a partner in a solicitor's office doing work of the nature in issue here at the time was considerably higher than £200, on the other hand, I have Mr. Fitzpatrick's expert opinion that it was only £150. It is difficult to understand how there should be such a yawning gap between two experts on such a basic matter. Thirdly, between the two extremes there is evidence of the internal management rates on the basis of which at the time A&L Goodbody billed the clients on account. It is difficult to determine what weight, if any, should be attached to this evidence. On the one hand, there was an unjustifiable reticence as to the "make-up" of those rates, which, in my view, was a proper subject of enquiry by Mr. Fitzpatrick. On the other hand, there was the emphasis in Mrs. Preston's testimony that the internal management rate took no account of the intangible profit element or other factors to which she referred. That, in my view, misses the point. The issue is not what the firm considers subjectively to be the appropriate remuneration. It is what hourly rates reflect the appropriate remuneration judged objectively. The only other evidence which emerged before the Taxing Master or on the review which throws some light on the question of the appropriate hourly rate is the evidence of Mr. McCarthy. While emphasising that the issue in the instant case is the appropriate hourly rates for solicitors, not for accountants, Mr. McCarthy's evidence is interesting because it indicates that, at partner level, the specialised expertise in relation to EC and domestic law on customs and excise controls bought in by the Companies and Mr. Goodman cost on an hourly basis the same amount as the solicitors' internal rate at that level.

107. If the hourly rate applied in the computation of the appropriate fee represents the reasonable and fair "going" rate for work of the type undertaken or comparable work, the factors which the "uplifts" allowed by the Taxing Master were designed to reward - skill, knowledge, complexity, difficulty, responsibility and effort - are already remunerated by the application of the hourly rate. It seems to me that the argument advanced on behalf of the Minister that these factors must be adequately compensated for by the combined effect of the quantum of the hourly rates, the mix of personnel involved in the work and the total number of hours allowed is unanswerable. The exercise which the Taxing Master did in applying what I think can fairly be described as premium hourly rates to all of the hours claimed and for the categories of fee earners claimed is not at all the same exercise as is done in the normal taxation of a solicitor's instruction fee for conventional litigation. In the latter situation, the cost of time is measured "in the round", not by costing ever hour or portion of an hour worked per fee earner, and the other Order 99, rule 37(22)(ii) components are factored in.

108. As to the overall level of the instruction fee, in my view, the taxation of the costs of Tara Mines Limited in the Bula case is not an appropriate comparator for the representation of the Companies and Mr. Goodman in relation to the general issues by A&L Goodbody before the Tribunal. By reason of the multiplicity of allegations and issues in which the Companies and Mr. Goodman were implicated which were the subject of investigation by the Tribunal, the representation of the Companies and Mr. Goodman before the Tribunal on the general issues must be considered as being sui generis.

109. An option open to the Court on this review is to remit the instruction fee items in the Bills to the Taxing Master for re-taxation. The Minister did not advocate this course. While I have considered it, with some degree of diffidence, I have decided not to adopt it.

110. Instead, I am reducing the allowance made by the Taxing Master to £2,500,000. I have arrived at that figure by the following process:-

111. On the totality of the evidence, I consider that, applying an objective standard, those hourly rates represent fair and reasonable rates in the market place in 1991 for the work having regard to its urgency, complexity, difficulty, importance to the clients and the responsibility borne by the solicitors.

112. While I have been constrained, because of the paucity of evidence, to adopt a more crude and unscientific approach than I would have wished, nonetheless, I believe that approach produces a just outcome as between the Minister, as the paying party, and the Companies and Mr. Goodman.

113. In the bills of costs presented, the amount claimed in respect of the general instruction fee for Rory O'Donnell & Company was £630,000. The total amount allowed on taxation was £554,000. In his ruling on the objections the Taxing Master disallowed the Minister's objection and affirmed the allowance he had made on taxation.

114. Export credit insurance was dealt with as a separate topic by the Tribunal. It is not in issue that it was the single most difficult and onerous topic dealt with by the Tribunal. Two hundred pages of the Tribunal's report are devoted to it. Rory O'Donnell & Co. were first instructed in October 1991. The Tribunal hearings in relation to export credit insurance commenced on 9th March, 1992. The documentation, which was vast, started coming from the Tribunal in January 1992 and documentation continued to be delivered throughout the hearings. There were 57 days of hearings between the 9th March, 1992 and 9th July, 1992. Thereafter there were 20 common days, that is to say, days on which the Tribunal dealt with both general issues and export credit issues. There was a concentration of 15 common days in September 1992, one in December 1992 and the rest in January 1993 with the final common day being 2nd February, 1993. Accordingly, it would appear that the involvement of Rory O'Donnell & Company in the Tribunal was spread over 16 months.

115. Mr. Behan presented the bills of costs at the taxation. The scheduled items taxed at £34,000. In relation to the instruction fee of £630,000, my understanding is that that was the assessment of Mr. Behan, a very experienced legal cost accountant, of the appropriate fee measured on a party and party basis in accordance with the principles stipulated in the Rules and in the authorities.

116. On the taxation Mr. Fitzpatrick suggested that £2,000 per day was the appropriate daily rate for Messrs. O'Donnell in respect of the hearing days on which the Tribunal was dealing exclusively with export credit insurance. He suggested that in relation to common days the appropriate daily rate would be the lesser rate of £1,500 per day. For the other elements in the instruction fee, the preparatory work, skill, specialised knowledge etc. he suggested a figure of £165,000 bringing the total general instruction fee to £311,000. Mr. Behan accepted that £2,000 per day was a fair rate for the hearing days but contended that reducing the rate for the common days was wrong. He also contended that an additional figure of £165,000 would not properly reimburse Messrs. O'Donnell for the work they had put in.

117. In his ruling on the taxation the Taxing Master pointed out that Messrs. O'Donnell did not time cost their work as A&L Goodbody had done. The Taxing Master's approach was to allow a daily rate for the hearings and then to allow a sum for the other factors provided for in Order 99, Rule 37(22)(ii). He allowed a daily rate of £2,000 for all of the hearing days, including the common days, which came to a total of £154,000. In relation to preparatory work, the Taxing Master said that it was clear from the documentation and the material involved and the time scale that quite an amount of preparatory work was undertaken. He determined that £200,000 was a reasonable sum to remunerate the Solicitors for the preparatory work. In relation to the Order 99, Rule 37(22)(ii) factors he allowed the sum of £100,000 for complexity and difficulty and a further sum of £100,000 for skill, specialised knowledge and responsibility. Accordingly, the total allowance was £554,000.

118. The Minister objected to the Taxing Master's determination on the taxation on the following grounds:-

119. No evidence was adduced on the hearing of the objections and, in essence, both sides reiterated the positions they had adopted on the taxation. In ruling on the objections, the Taxing Master reiterated the approach he had adopted in ruling on the taxation, he disallowed the Minister's objections and he affirmed the allowance of £554,000.

120. On this review, the Minister adopted the same position as he had adopted hitherto. However, it was suggested that the appropriate allowance for preparatory work was on the basis of an equivalence to 77 days work, not 100 days work.

121. Counsel for the Companies and Mr. Goodman submitted that the investigation of the export credit insurance topic was one of the more sensitive and important issues from the perspective of the Companies because the investigation was taking place against a background of a pending the civil action by the Companies against the State claiming £200 million arising out of their export credit insurance policy. It was submitted that the allowance made by the Taxing Master was the appropriate fee and that the Minister had not discharged the burden of proof on him to displace the allowance as the appropriate fee. If the Court were to disturb the Taxing Master's finding without any evidential basis, this would not be a proper exercise by the Court of its power to review taxation. The Court must conclude that the burden of proof had not been discharged by the Minister for a variety of reasons: the Tribunal process was unique and exceptional; there was no relevant comparator; the Taxing Master is an expert and his determination is entitled to curial deference; the Taxing Master had evaluated the instruction fee in accordance with the Rules and had arrived at a figure which reflected time at hearing and in preparation, skill and specialised knowledge, responsibility and effort as he was enjoined to do; and his conclusions were supported by the evidence, that is to say, the documentary evidence and the expert opinion of Mr. Behan and Mr. Lowe. Interference by the Court would be arbitrary or capricious or mere clipping.

122. Earlier in this judgment I pointed out that the established jurisdiction of this Court is that on a review such as this the Court is entitled to alter the Taxing Master's determination if it is shown that, although he applied the correct principles, he arrived at an incorrect amount for any item in the bill. This is a case in point. While I have not seen the physical evidence, the documentation generated in connection with the export credit insurance issues, including Counsels' directions, I have read the transcript of the proceedings on the taxation and the proceedings on the hearing of the objections. I have also had regard to the material in relation to the investigation of the export credit insurance allegations contained in the Report of the Tribunal. On the basis of the totality of the evidence, I consider that the allowance made by the Taxing Master, £554,000, is excessive and is not the appropriate fee and that it is excessive to a degree that is unjust to the Minister.

123. The clear picture which emerges is that the Solicitors' involvement was limited to 16 months at the outside and within that time span there was a period or periods of intensity of seven or eight months and no more. They had the assistance of five counsel during that period. It is common case that the daily rate of £2,000 is the appropriate rate for the sitting days. No rational basis for reducing the daily rate has been advanced and, in my view, it is not good enough for the Minister to say that he is paying A&L Goodbody for the same days. The fact that both firms were required to attend the Tribunal on certain days is not the fault of either firm or their clients. Therefore, as the Taxing Master did, I start with an allowance of £154,000 for attendance at the Tribunal. The Taxing Master added to that figure £400,000 to cover the work done outside the Tribunal, the preparatory work, and to cover overall the other factors which he is enjoined by Order 99, rule 37(22)(ii) to have regard to, namely, complexity, skill, responsibility and so forth. It is difficult to rationalise the inclusion in that figure of £400,000 of £200,00 to cover complexity, skill and responsibility factors to "uplift" an amount of work valued by the Taxing Master £354,000, when in his assessment of the instruction fee of A&L Goodbody he applied "uplifts" of a similar order of magnitude where he had valued the work done at almost £3,000,000, even allowing for the fact that he stated that the hourly rate he applied accounted for some element of those factors. In my view, the appropriate addition to the starting figure of £154,000 to arrive at an appropriate instruction fee is £275,000 to bring the total fee to £429,000. The sum of £275,000 in my view, properly reflects the preparatory work and properly rewards overall for the other relevant factors - complexity, skill, responsibility and so forth. I reject the argument advanced by the Minister that the latter factors are already rewarded through the daily rate. Unlike the application of an appropriate hourly rate to the appropriate number of allowed hours in respect of the appropriate cadre of personnel, the application of a flat daily rate without regard to actual time worked or by whom worked does not reflect those factors. I think it is immaterial how one analyses the sum of £275,000 to reflect the various elements encapsulated in it, whether as representing £175,000 for the preparation time and £100,000 for the other factors or otherwise. What is important is that the overall fee is the appropriate fee.

124. Although admittedly not a true comparator, it seems to me that the taxation of the costs of Tara Mines Limited in the Bula case is indicative of the appropriate level of instruction fee for Rory O'Donnell & Company, that firm being concerned with a single topic before the Tribunal, albeit one which had a number of facets. That the fee I have suggested as an appropriate fee for Rory O'Donnell & Co. is somewhat in excess of 25% of the fee allowed to Tara Mines Limited is indicative, in my view, that the former is an appropriate fee, or, at any rate that it is certainly is not too low.

125. The orders of the Tribunal allowed for the employment of three counsel in the case of the Companies and two counsel in the case of Mr. Goodman. A senior counsel, Dermot Gleeson, and two junior counsel, Ian Finlay and Michael Collins, were retained on behalf of the Companies; one senior counsel, Seamus McKenna, and one junior counsel, Donal O'Donnell, were retained on behalf of Mr. Goodman. The same teams were instructed in relation to the general issues and the export credit issues, by A&L Goodbody in relation to the former and by Rory O'Donnell & Company in relation to the latter.

126. In drawing the bills of costs and in the submissions before the Taxing Master and on the review, counsels' fees were considered under four sub-headings, namely:-

127. The bills were drawn on the basis that the brief fee, in accordance with the usual practice, covered all work up to and including the first day of the hearings, the refresher fees, also in accordance with the normal practice, were payable in respect of each hearing day after the first hearing day, and the fees for non-sitting or preparatory days were payable in respect of days during the legal term when the Tribunal was not sitting but counsel were engaged exclusively in preparatory work in connection with the Tribunal.

128. In broad terms the Minister's position in relation to counsels' fees is as follows:-

129. The total amount allowed on the taxation and on the hearing of the objections for counsels' fees was £3,000,795. For ease of reference and comparison I have set out in tabular form the fees allowed for each counsel under each sub-heading in Table I in Appendix A annexed to this Judgment. I propose now considering the submissions made by the parties in relation to each sub-heading in greater depth.

130. Looking at the basis on which the Minister objects to the quantum of counsels' brief fees in greater depth, it was contended that the Taxing Master erred in attaching the weight he did to the fact that counsels' fees were discussed and agreed between solicitor and counsel. Such an agreement could not give rise to any presumption that the fees claimed were allowable on a party and party basis, it was contended in reliance on Best -v- Wellcome Foundation Ltd [1996] 1 I.L.R.M. 34. On the contrary, it was suggested that the fees had been agreed on a solicitor and client basis and ought not to have been allowed on a party and party taxation.

131. The principal plank in the Minister's objection to the brief fees was what it was suggested was an unjust and an unacceptable disparity between the fees allowed and the fees paid to counsel for the Tribunal and counsel for the State and the failure of the Taxing Master to address this disparity on hearing of the objections. In his Report on the objections, the Taxing Master acknowledged that a "significant difference" existed but he stated that he could not and did not intend to explain why a huge disparity existed. It was submitted that this was not an appropriate approach to the discharge of the Taxing Master's function. The Taxing Master, and the Court on a review, must attempt to "reconcile the irreconcilable", as is to be inferred from the decision of the Supreme Court in The Commissioners of Irish Lights -v- Maxwell [1997] 3 I.R.474 and must provide a proper basis for the allowances involved. Specifically, it was argued that the Taxing Master was wrong in concluding that counsel for the Companies bore a heavier burden than counsel for the Tribunal or counsel for the State. He was also wrong in surmising that the possible explanation for the disparity in the brief fees was that counsel for the State were prepared to accept brief fees below the "going rate" because of the volume of briefs in civil litigation which the State is in a position to dispense. This argument might have some validity in the case of ordinary litigation, but not in the case of a "one off" proceeding such as the Tribunal. Nor did the possible explanation that the fees payable by the State were guaranteed stand up on the facts, given that on the evidence it was clear that counsel for the Companies and Mr. Goodman were paid as the matter progressed.

132. In relation to both the brief fees and the refresher fees counsel for the Minister relied, in particular, on the decision of the Supreme Court in The Commissioners of Irish Lights -v- Maxwell , which was delivered on 1st December, 1997 after the ruling of the Taxing Master on the objections. While the Minister's extreme position that the brief fee should be equivalent to the brief fee allowed to counsel for the State, £8,400, was not advanced in the context of the decision of the Supreme Court, when pressed as to what the Minister's position was as to the appropriate brief fee in the light of that decision, counsel for the Minister indicated that it was that the brief fee allowable to senior counsel for the Company should not be significantly higher than the highest brief fee referred to in the comparisons considered by the Supreme Court in that case, a brief fee of £31,500.

133. I should, perhaps say for the avoidance of doubt, that while counsel for the Minister referred to the brief fees allowed to counsel for Tara Mines Ltd on the Bula taxation in the Taxing Master's ruling given on 25th March, 1998, when counsel for the Companies and Mr. Goodman objected to Mr. Fitzpatrick giving evidence in relation to the brief fees taxed, the matter was not pursued. Therefore, I have had no regard to the brief fees allowed on taxation in the Bula case.

134. Counsel for the Companies and Mr. Goodman submitted that in making the allowances in relation to the brief fees the Taxing Master had properly applied the test laid down in Kelly -v- Breen . There was no evidence to support and no basis for alleging that no solicitor acting reasonably carefully and reasonably prudently would have agreed the brief fees. The nature of the case necessitated and justified brief fees of the order of magnitude allowed. The proceedings were not in the nature of a lis inter partes where the issues have been carefully distilled by pleadings and necessary interlocutory applications before the matter comes to hearing. On the contrary, from the outset, the scope of the enquiry was constantly changing. It soon became obvious that counsel would be required to possess and display familiarity with diverse areas of law and a level of commitment and skill which is not commonly found or required. Large amounts of documentation were received from the Tribunal on an ongoing basis and against a background of time constraints. It was submitted that the size of the task required by counsel is reflected in the fact that leading counsel spent £70,000 on computer hardware, software and technical assistance solely to cope with the Tribunal and his manual filing system involved the employment of one full-time and one half-time secretary for the duration of the Tribunal. Any solicitor acting reasonably carefully and reasonably prudently would envisage that counsel would incur significant overheads if he was to display the skill necessary to manage the documentation.

135. The task undertaken by counsel in relation to the brief in issue in The Commissioners of Irish Lights -v- Maxwell was not at all comparable with the task of counsel representing the Companies and Mr. Goodman at the Tribunal. None of the briefs under consideration by the Supreme Court in that case was a valid comparison either. The commitment required by counsel representing the Companies and Mr. Goodman at the Tribunal was particularly relevant. It was open-ended and of necessity it was exclusive, with the exclusivity extending for an indeterminate period. The exclusive attention was necessary in order that the clients' interests be properly protected and it could not be properly regarded as a luxury.

136. It was argued that the case advanced by the Minister on the basis of the disparity between the brief fees paid to counsel for the Tribunal and counsel for the State and the brief fees allowed to counsel for the Companies and Mr. Goodman on taxation fee well short of evidence that the instructing solicitors failed to act reasonably carefully and reasonably prudently. A number of factors were relief on in support of this argument. First, reference was made to the traditional disparity between fees paid to counsel acting on behalf of the State and those paid in the market place. One explanation suggested for this disparity is a pro bono publico tradition at the Bar. Another is the volume of work which the State generates. Both factors have been recognised by the Courts in the past ( Crotty -v- An Taoiseach [1990] I.L.R.M. 617; State (Gallagher Shatter) & Co. -v- DeValera [1987] I.R. 55). In the case of the Tribunal, it was suggested that there may have been other considerations - political or public relations considerations. In any event, it was argued that counsel do not agree fees with the State; they are paid fees determined by the State. Secondly, the brief fees paid to counsel for the State were determinated at a very early stage, whereas counsel for the Companies and Mr. Goodman negotiated their fees at a time when the magnitude of the brief was more obvious. Thirdly, it was suggested that counsel for the State and the Tribunal were paid for preparatory non-sitting days during the long vacation and up to the first day of the Tribunal, whereas no preparatory fees were paid to counsel for the Companies and Mr. Goodman until the law term resumed. On this point, it seems to me that the analysis of the preparatory days for which Mr. Hickey and Mr. Maguire were paid by contrast to the fees for preparatory days allowed to Mr. Gleeson on the taxation is not correct because it overlooks the fact that Mr. Gleeson was allowed fees for 117 preparatory days in total when one takes into account the allowance in relation to the export credit issues. The analysis is on surer ground in relation to the second senior counsel for the Tribunal, David Byrne. The total fees paid to Mr. Byrne on the brief and for preparatory days were £214,725, comprising a brief fee of £8,400 and 196.5 preparatory days at £1,050 per day. The proper comparison with this amount is the total amount allowed to Mr. Gleeson for brief fees and preparatory days, which is £322,420, comprising £175,000 on the two briefs and £147,420 in respect of preparatory fees at the rate of £1,260 for 117 days.

137. Before considering the detailed submissions made by counsel in relation to the quantum of the refresher fees, and, in particular, before attempting to contrast the allowances made to counsel for the Companies and Mr. Goodman with the refresher fees paid to Counsel for the State, I think it is proper to point out that the factual situation in relation to the allowance is made by the Taxing Master is more complicated than the submissions made by counsel would suggest. This arises primarily because in his Reports on the bills in relation to the general issues, the Taxing Master gave a breakdown of the refresher fees allowed to each counsel by reference to the number of days in question and the amount allowed in respect of each day, whereas no such breakdown was contained in the Reports on the bills in relation to the export credit issues. In any event, it appears to me that the true position is as follows:-

138. The refresher fees were paid to the two senior counsel who represented the State at the daily rate of £1,890 each for the duration of the Tribunal and the two junior counsel, who were briefed with them, were paid refresher fees at the daily rate of £1,260 each for six days and thereafter for the duration of the Tribunal at the daily rate of £1,200 each.

139. The gravamen of the Minister's case in relation to the refresher fees is that the Taxing Master should have allowed only daily rates which achieved parity with the daily rates paid to counsel for the State, who were the appropriate comparators. It was submitted that the daily rates allowed were not only out of line with the two comparators but were out of line with the going rates even for heavy commercial cases which, it was suggested, on the evidence afforded by The Commissioners of Irish Lights -v- Maxwell was in the region of £2,000 per day. It was submitted that, in view of the fact that the amount of the refresher fees in that case, which related to work done in June/July 1994, was not in issue before the Supreme Court in The Commissioners of Irish Lights -v- Maxwell , this Court could not safely attach much weight to the fact that a concession was made by the legal cost accountant for the paying party, coincidentally Mr. Fitzpatrick, at the hearing in the High Court that a refresher fee at the daily rate of £3,150 was not unreasonable or the obiter dictum of Barron J. in his judgment that the concession was correctly made. The Minister's objection to the refresher fees is not, however, confined to the daily rate and it was emphasised that the global amount of the refreshers having regard to the number of days to which they relate is unjustified.

140. On the last point, counsel for the Companies and Mr. Goodman submitted that the number of refreshers was determined by the life span of the Tribunal and the extent of counsels' involvement before it. They referred to Order 99, Rule 37(28) of the Rules which provides that it shall be in the discretion of the Taxing Master to allow reasonable refreshers to counsel in proper cases. The State had not discharged the burden of disturbing the Taxing Master's rulings that the refresher fees claimed were allowable. In particular, counsel for the State were not valid comparators of market fees, because of the traditional disparity in relation to fees paid by the State. In addition, they suggested that on the taxation of the costs of Mr. Spring and Mr. Desmond, who had limited representation before the Tribunal, Mr. Fitzpatrick had accepted that a refresher fee of £1,890 per day for 84 days was appropriate which, it was suggested, established that counsel for the Tribunal and counsel for the State were not paid market rate refresher fees since the responsibility borne by them on any analysis must be regarded as greater than that borne by counsel for Mr. Spring and Mr. Desmond.

141. There was nothing unusual or untoward about the refresher fees which were allowed by the Taxing Master. Reference was made to The Commissioners of Irish Lights -v- Maxwell and, in particular, to the fact that it was recorded in the judgments in the High Court and Supreme Court that in Howard -v- The Commissioners of Public Works , the case concerning the Interpretative Centre at Mullaghmore, Co. Clare, the representative of the Chief State Solicitor agreed a refresher fee of £3,150 for senior counsel in an action which was instituted in 1992. It was also submitted that the refresher fees allowed by the Taxing Master were reasonable having regard to the level of responsibility which counsel for the Companies and Mr. Goodman bore, the vast amount of material which had to be analysed and assimilated by them on a daily basis, 90% of which arrived after the Tribunal hearings commenced, the length of the working day, the fact that no additional charges were levied by counsel for consultations, advices on proofs, dealing with emergencies and so forth. The fact that Mr. Collins was not paid refresher fees for the duration of the Tribunal was indicative of reasonableness and prudence on the part of the instructing solicitors.

142. In relation to the relationship of the refresher fees allowed to Mr. McKenna and Mr. O'Donnell, it was submitted that there is no "two-thirds rule" although there is a convention applicable to High Court cases which generally results in junior counsel being allowed a refresher fee which is equivalent to two-thirds of that allowed to senior counsel. Mr. O'Donnell was paid refreshers which were in excess of two-thirds of those paid to Mr. McKenna because of the amount of work and responsibility Mr. O'Donnell was carrying. Mr. McKenna himself recognised the level of input that was required by him by charging refresher fees which ranged from £2,500 to as low as £500. It was submitted that the Taxing Master is no more entitled to reduce junior counsel's fees so that they are equivalent to two-thirds of the fees marked by senior counsel than he is entitled to increase senior counsel's fees so they represent 1.5 times the fees that he has held were properly agreed with junior counsel. The point was also made that the reduced fee charged by junior counsel for the Companies, £1,500, was less than two-thirds of the corresponding fee, £2,500 charged by senior counsel for the Companies.

143. As in the case of the refresher fees, in his Reports on the bills in relation to the export credit issues, the Taxing Master did not give a breakdown of the fees for non sitting or preparatory days allowed by reference to the number of days in question and the daily rate applicable. As I understand it, the breakdown is as follows:-

144. Counsel for the Tribunal and counsel for the State were paid fees for non sitting days. In the case of counsel for the State, the daily rate for senior counsel was £1,050 and the daily rate for junior counsel was £700. In the case for counsel for the Tribunal, there was no differentiation between senior and junior counsel and each counsel was paid a daily rate of £1,050 for non sitting days.

145. The Minister's fundamental objection to the fees allowed for non sitting or preparatory days is that there was and is no precedent for allowing such fees on a party and party taxation. Preparatory work, in many instances, very substantial preparatory work is necessary for all litigation and counsel is remunerated for that work through the medium of the brief fee and the refresher fees. The decision of the English High Court in Loveday -v- Renton (No.2) [1992] 3 All E.R. 184 was cited in support of that proposition. In any event, if work which is normally rewarded as part of the brief fee is taken out and charged as a separate item, there must be a "knock-on" effect, a reduction of the brief fee. Billing as a separate item cannot add to the overall quantum of the bill; it can only add to the categorisation of items within the bill.

146. It was submitted on behalf of the Minister that the payments made in respect of preparatory days were made so as to retain the exclusive attention of counsel on days when counsel would otherwise have been free to take on other work and, as such, were either "special fees" to counsel within the meaning of Order 99, Rule 37(18) and/or retainer fees within the meaning of Order 99, Rule 37(29) and, in either event, were not properly allowable on a party and party taxation.

147. The payment of preparatory fees to counsel for the State and for the Tribunal did not provide any basis for allowing such fees on this party and party taxation because it is a fundamental principle of taxation that the fact that the paying party has made certain disbursements on a solicitor and client basis does not imply that similar disbursements made by the party for the costs are to be recovered on a party and party basis.

148. The Minister's alternative submission, that the quantum of the fees for non sitting days allowed was excessive, was based on arguments that the number of preparatory days claimed was excessive, that the level of fees claimed and allowed was excessive and represented an unjustifiable disparity between those fees and the fees actually paid to counsel for the State and counsel for the Tribunal and that it was wrong in principle to allow preparatory fees to junior counsel in an amount which exceeded the fees allowed to senior counsel. It was submitted that the Taxing Master failed entirely to address any of these issues on the hearing of the objections.

149. Predictably, counsel for the Companies and Mr. Goodman submitted that payment of preparatory fees was not without precedent. The precedent had been set by the State in agreeing to pay counsel for the State and counsel for the Tribunal fees in respect of preparatory days. It was also pointed out that in respect of an important witness who was residing in Canada, Patrick McGuinness, the Tribunal had authorised payment to secure his attendance before the Tribunal and the payments included legal costs. Mr. McGuinness was represented by a firm of Canadian barristers and solicitors and the legal costs authorised included charges in respect of preparatory work and consultations at the rate of $250 (Canadian) per hour for Queen's Counsel and $95 (Canadian) per hour for a junior counsel. The fact that counsel for the State and counsel for the Tribunal were paid fees for preparatory days and that the Tribunal itself authorised payment of fees for preparatory work, it was submitted, of itself indicated that the preparatory work was necessary and could not be categorised as a "luxury". Moreover, it was re-emphasised that no fees were levied by the Goodman team in respect of consultations, advices, advices on proofs, preparing memoranda on legal issues, or vacation or weekend work.

150. In relation to the Minister's submission that the fees claimed for preparatory days were in the nature of special fees or a retainer for exclusive retention, it was submitted on behalf of the Companies and Mr. Goodman that the essence of a retainer for exclusive attention is a payment simply for being available - not for doing any work. The fees claimed for preparatory days were claimed in respect of work done during those days. It was submitted that in agreeing fees for preparatory days, the solicitors did what a careful and prudent solicitor would have done in the circumstances. They agreed that there would be payment for preparatory days if and when they occurred during term time. Work engaged in outside term time and at weekends was to be subsumed in the brief.

151. In relation to what they referred to as a perceived breach of the "two-third rule", counsel for the Companies and Mr. Goodman submitted that counsel were paid the fees that were reasonable having regard to the amount of work and the responsibility borne by them.

152. The Minister's objection in principle to the Taxing Master's allowance of £75,000 to senior counsel for the Companies for the written final submissions submitted to the Tribunal is that no additional fee should have been allowed in respect of the work involved, it being, in any event necessary for the proper presentation of the Companies' case to the Tribunal. The work in question, it was submitted, was work which is normally rewarded through the medium of the brief fee and the refresher fees paid to counsel. The decision of the English High Court in Loveday -v- Renton (No.2) was cited in support of this proposition. In the alternative, it was submitted that the fee allowed was wholly excessive and that the proper fee should be measured by reference to the practice prevailing in the Superior Courts of allowing one refresher, which practice was followed by McCracken J. in Smyth -v- Tunney [1999] 1 ILRM 211. It was pointed out that the fee allowed was equivalent to 25 refresher fees at a daily rate of £3,000.

153. Counsel for the Companies and Mr. Goodman submitted that the principle of charging separately for written submissions is well established in this jurisdiction and that the only issue was what was the appropriate fee in the particular case. It was acknowledged that the practice has developed of a fee equivalent to one refresher fee being marked and that this amount is usually allowed on taxation. However, it was submitted that this practice reflects an arbitrary approach and that a different fee may be merited in a particular case. It was submitted that the instant case was a case in which a different fee was merited having regard to the nature of the written submissions, which comprised a number of volumes containing, inter alia , a synopsis and appraisal of the oral evidence topic by topic, submissions on evidential and procedural issues, the isolation of selected exhibits which were of particular importance, and the isolation of selected facts. It was submitted that the fee allowed was a proper fee having regard to the volume of material which had been before the Tribunal and the number and the breadth of the issues involved, which rendered the production of the final submissions a "Herculean task".

154. In considering the scope and the standard of the review undertaken by this Court on a review under Order 99, Rule 38, I have set out the test which the Taxing Master was required to apply in taxing Counsels' fees before the coming into operation of the Act of 1995 - whether no solicitor acting reasonably carefully and reasonably prudently based on his experience in the course of his practice would have determined such fees. That is the test posited in Kelly -v- Breen and, as I have stated, it is the ninth principle in a list of nine principles enunciated in the judgment of Hamilton J. which have been approved of time and again during the past 20 years. Three of the other principles enunciated at pages 68-9, are particularly apposite in the current context, namely:-

155. The application of the test posited in Kelly -v- Breen envisages a hypothetical solicitor determining a proper and reasonable fee for a hypothetical counsel. The hypothetical solicitor is assumed to be familiar with the matters referred to in the fourth principle. The hypothetical counsel for whom he is determining the fee is the "hypothetical counsel competent to do the case and not being in a position to expect a special or fashionable fee" ( per Barron J. in Best -v- Wellcome Limited , [1996] 1 I.L.R.M 34, 48) or "the hypothetical counsel capable of conducting the present case effectively (but unable or unwilling to insist on the particular high fee sometimes demanded by counsel of pre-eminent reputation)" ( per Murphy J. in Smyth -v- Tunney , [1993] 1 I.R 451, 468).

156. One of the factors which the hypothetical solicitor is assumed to know is the amount of the fees paid to the opposing counsel in the same matter, subject to whatever factors might be special in the case. In considering the significance of this factor in Crotty -v- An Taoiseach , [1990] I.L.R.M. 617, Barr J. stated as follows (at page 627):-

157. The decision of the Supreme Court in Commissioners of Irish Lights -v- Maxwell is the most recent decision of the Supreme Court cited in which counsel's fees were in issue. While the brief fee at issue in that case was subject to taxation on a solicitor and client basis, the approach adopted by the Supreme Court is particularly instructive. The brief fee related to the representation of the applicants at an oral hearing of an appeal brought by them to An Bord Pleanala arising out of the refusal of Clare County Council to grant planning permission for the construction of a mast. The appeal was heard in Ennis and lasted for nine days. The Taxing Master had allowed the brief fee marked, £31,500 and was upheld on the review in this Court by Barron J. Dealing with the evidence available in that case, Keane J., with whom the other judges of the Supreme Court agreed, stated at page 482:-

158. The brief fees allowed in the cases of "the first constitutional importance" to which reference had previously been made were in the range of £9,500 to £15,750. Keane J. continued at page 483:-

159. The refresher fee was £3,150. Keane J. concluded that, having regard to the evidence of other brief fees in cases of, at the very least, comparable magnitude, the applicants had discharged the onus that it would not have been reasonable for a reasonably careful and reasonably prudent solicitor to have agreed a brief fee of £31,500 and he found that, on the evidence, a reduction to £15,000 was necessitated.

160. The decision in Loveday -v- Renton (No.2) , which was relied on by Counsel for the Minister in support of their objection in principle to any part of the fees in respect of the non-sitting days or of the fee in respect of the written final submissions being allowed, is of limited assistance only because it involved the taxation of the costs of an unsuccessful Plaintiff who was legally aided and the taxation was a legal aid taxation. However, the following passage in judgment of Hobhouse J., at page 190-191, as to the proper basis on which counsel are entitled to charge for work, is of interest:-

161. In relation to the issue of written submissions, Hobhouse J. took a similar line in the following passage in page 192:-

162. It is clear from the report of Loveday -v- Renton that the trial Judge had indicated during the course of the trial that he would expect written submissions.

163. In my view, the Minister's objection in principle to the allowance of fees for non-sitting or preparatory days on the party and party taxation of the Companies' and Mr. Goodman's costs of representation at the Tribunal is not sustainable. Counsel for the Tribunal and Counsel representing the State were paid fees for non-sitting days, presumably with the concurrence of the Minister. It must be assumed that the Minister, as the effective paymaster, was satisfied that the payment of such fees was necessary having regard to the nature of the process which the Tribunal was to be. Apart from the Tribunal itself and the State the other major players in the process were the Companies and Mr. Goodman. The old adage that 'what is sauce for the goose is sauce for the gander' springs to mind. It is surely reasonable to infer that, in the context of the Tribunal, what was necessary and proper for counsel for the Tribunal and counsel for the State was also necessary and proper for counsel representing the Companies and Mr. Goodman. Apart from this, it was argued that counsel for the Companies and Mr. Goodman had done precisely what Hobhouse J. envisaged counsel in a privately funded case doing: they had negotiated a special arrangement for the payment of fees for non-sitting days. Both sides seemed to agree that the allowance or non allowance of the fees for non-sitting days must impact on the quantum of the brief fee, but they were not agreed as to the impact in the instant case. Given that 90% of the documentation delivered was delivered following the commencement of the Tribunal hearings and that the process was one in which additional material was constantly being delivered and constantly being sourced, if fees for non-sitting days were disallowed, counsel for the Companies and Mr. Goodman argued that the brief fee would have to be adjusted upwards.

164. The Minister's objection in point of principle to the allowance of a fee for written final submissions is not sustainable either. Indeed, the Minister's counsel accepted, properly in my view, that fees for written submissions are allowable on a party and party taxation in this jurisdiction but he argued that in the instant case account had to be taken of the fact that part of the work which went into the written submissions falls to be rewarded in the brief fee.

165. As to the correct overall approach to the review of counsels' fees in the context of the unusual process which the Tribunal was, it seems to me that the non-refresher items, that is to say, the brief fee, the fees for non-sitting days and the fee for the written final submissions should be considered together first, the refreshers should then be considered and finally all the elements should be considered together. The test on each consideration is what a reasonably careful and a reasonably prudent solicitor would offer counsel in the light of the knowledge which the criteria laid down in Kelly -v- Breen require to be imputed to him. The Taxing Master, in his Report on the taxation, considered how historically counsels' fees had been agreed and he quoted at length from the correspondence from Mr. Gleeson to Mrs. Preston and the submissions of Mr. Behan, which illustrated how the agreement on counsels' fees had evolved. On the basis of this evidence one could not conclude that Mrs. Preston acted other than in a careful and prudent manner in the matter of counsels' fees. However, the test is not how Mrs. Preston acted; it is how a reasonably careful and a reasonably prudent solicitor armed with the knowledge which the Kelly -v- Breen test imputes to him would have acted in the circumstances.

166. In the application of the objective standard in this case, in my view, the important factors are the fees paid to the counsel representing the State at the Tribunal and such evidence as there is of the "going rate" which was payable to counsel in important constitutional actions and heavy commercial cases in the period from 1991 to 1993.

167. In comparing the fees paid to counsel for the State and the fees allowed on this taxation, in my view, some account must be taken of the traditional disparity between fees paid by the State to the counsel it briefs in civil litigation and fees which historically have been allowed on party and party taxation for the opposing counsel, although I do not consider this factor to be as significant in the Tribunal context as it would be in ordinary litigation. As the "package" under which counsel for the State were remunerated included provision for fees for non-sitting days, the timing of the fixing of their brief fees at an early stage, in my view, is not as significant as was contended for on behalf of the Companies and Mr. Goodman. The important factor in comparing the fees paid to counsel for the State and the fees allowed on this taxation, in my view, is a comparison of the respective burdens borne by counsel for the State, on the one hand, and counsel for the Companies and Mr. Goodman, on the other hand. Having regard to the Report of the Tribunal published in July 1994 and, in particular, the list of allegations in Appendix 1, the majority of which were investigated by the Tribunal, and chapters 5-23 inclusive, I have no doubt that the task undertaken by counsel for the Companies and counsel for Mr. Goodman was immeasurably more onerous than the task undertaken by counsel for the State, who had the apparatus of the State behind them. Even without doing a scientific analysis, it is patently obvious that the vast majority of the allegations investigated by the Tribunal affected the Companies and Mr. Goodman. Some of the allegations were very serious indeed in that they alleged fraudulent practices, tax evasion, abuse of E.C. subsidy schemes, contravention of the terms of the Companies' export credit insurance policy, breaches of company law and so forth. It is true that the allegations implicated organs of the state, for instance, the Department of Agriculture, the Revenue Commissioners, the Customs and Excess Authority and the Gardai in some of the alleged wrong doing in varying degrees of complicity. However, the potential gravity of an adverse finding of fact by the Tribunal for the Companies and Mr. Goodman and the potential for damage to the reputation, business and goodwill of the Companies and Mr. Goodman's reputation far outweighed the potential for damage to the organs of the State and the individuals represented by counsel for the State. By this comparison it is not intended to detract from the diversity, difficulty and complexity of the issues in which counsel for the State were involved or the seriousness of the accusations which the parties whom they represented were facing or the sensitivity of their position, in that persons that they were representing in an official capacity were also accusers before the Tribunal; it is simply to highlight the heavier burden borne by the Goodman team. A further factor which, in my view, it is appropriate to have regard to in the comparison is the overall fees paid to the full team of four counsel representing the State and the overall fees allowed to the team of three counsel covered by the Order of the Tribunal in favour of the Companies.

168. The issue for the court is whether the factors which I have just outlined justify the disparity between the fees in respect of non refresher items paid to Mr. Gleeson (£397,420) and the corresponding fees paid to Mr. Hickey (£126,000) and Mr. Maguire (£128,655) or indeed, the corresponding fees paid to Mr. Byrne (£214,725) and whether they justify the disparity between the totality of fees in respect of non refresher items paid to the companies team of counsel (£873,470) and the totality of the corresponding fees paid to the State's full team of two senior counsel and two junior counsel (£422,655). While I have stated that the burden on Companies' legal team was immeasurably more onerous than the burden on the State's legal team, nonetheless, on the authorities I must attempt to measure the immeasurable. I have come to the conclusion that in the context of a party and party taxation the disparity cannot be justified objectively.

169. I think that the hypothetical reasonably careful and reasonably prudent solicitor armed with the knowledge imputed to him under the Kelly -v- Breen criteria would have offered a daily rate for non-sitting days commensurate with the daily rate paid to counsel for the Tribunal, that is to say, £1,050 for both senior and junior counsel. I think he would have offered a total brief fee of £125,000 to Mr. Gleeson and he would have adjusted the brief fees of Mr. Finlay, Mr. Collins and Mr. O'Donnell downwards pro rata . In relation to the fee for the written final submission, the evidence indicates that the Tribunal sought final submissions in writing. I think the hypothetical solicitor would be cognisant of the importance of the written submissions having regard to the Tribunal's request and of the additional burden opposed on counsel in having to reduce the submissions to written form. Having seen the written final submission, I think the hypothetical solicitor would conclude that one third of the fee allowed by the Taxing Master, £25,000, fairly represents the time, effort and outlay in producing the submissions in written form and would offer that sum.

170. I have set out in tabular form in Table II in Appendix A the alterations which I consider appropriate to the allowances made by the Taxing Master in respect of non refresher items. The total amount of the fees for non refresher items as altered allowable to the Companies' full legal team is £593,700 in contrast to the total fees for non refresher items paid to the state's full legal team of £422,655. I believe that the disparity which remains is objectively justified by the factors I have outlined. If one analyses the altered fees allowed to Mr. Gleeson for the brief and non-sitting days, £272,850, the total represents roughly sixteen times the brief fee allowed by the Supreme Court in Commissioners for Lights -v- Maxwell . It is almost eight times the size of the largest fee referred to in the Judgment of Keane J. in that case. While it would be clearly absurd to suggest that a brief to represent the Companies before the Tribunal was equivalent to sixteen important planning appeals or eight heavy commercial cases, I think the analysis does not reveal any unreasonable disproportion particularly in the light of the dictum of Keane J. in Commissioners of Irish Lights -v- Maxwell that Counsel properly protect themselves against a case running for longer than anticipated by stipulating for the payment of appropriate refresher fees.

171. At their lowest the daily rates of refresher fees paid to the four Counsel on the State team aggregated £6,180. At their highest the daily rates of refresher fees allowed by the Taxing Master to the three Counsel on the Companies' team aggregated £7,000 and at their lowest, after approximately 70 days, they aggregated £5,500. The highest daily rate of refresher fee allowed to Mr. Gleeson, £3,000, compares favourably with the refresher fee which, in his judgment in Commissioners of Irish Lights -v- Maxwell , Keane J. considered was not excessive in the circumstances and at the same time was not unfair to Counsel. In my view, the hypothetical reasonably careful and reasonably prudent solicitor, knowing the level of refresher fees being paid to Counsel for the State and knowing what the "going rate" was, as evidenced by the authorities, would not have balked at the refresher fees allowed to Counsel for the Companies' by the Taxing Master and would have offered refresher fees at those rates. The Minister's objection to the global quantum of all of the refresher fees allowed, in my view, is not sustainable. It was submitted that the refresher fee, on a day to day basis, does not reflect the burden of a particular day. There are hard days and easy days, it was suggested, and in-built into the market or going rate is a "swings and roundabouts" effect. I do not see how the duration of the process and the increase in the number of refresher days occurring would justify tinkering with the daily rate unless they were demonstrably more easy days than hard days or vice versa .

172. In global terms the respective amounts allowed by the Taxing Master for refresher fees for Mr. McKenna and Mr. O'Donnell were £374,950 and £322,250. The Minister's objection that these allowances reflect a departure from the normal practice of junior counsel's refresher representing two-thirds of senior counsel's refresher has been met with the response that the respective amounts reflect the amount of work and responsibility borne by the respective counsel. The authority of the Taxing Master to tax the fees of counsel representing Mr. Goodman derives from the Order of the Tribunal which provided for the taxation of the costs of two counsel on a party and party basis. The obligation of the Minister to pay the fees of Mr. Goodman derives from the same Order. In my view, the hypothetical reasonably careful and reasonably prudent solicitor considering the appropriate refresher fee for junior counsel representing Mr. Goodman, on an objective appraisal, would have concluded that the burden which would fall on him would be less onerous than the burden which would fall on junior counsel for the Companies and would not have offered a daily rate equivalent to the appropriate refresher for junior counsel for the Companies. In my view, he would have offered a refresher rate which approximately reflected the traditional link between the refresher rate of junior counsel and the senior counsel leading him. Accordingly, I consider that the refreshers allowed for Mr. O'Donnell should be altered to reflect a rate of £1,700 per day for 70 days and a rate of £1,300 per day for 122 days which aggregate at £277,660. It could be contended legitimately that there is illogicality inherent in altering the refresher rate allowable to Mr. O'Donnell, while not altering the brief fee allowed to him save for the reduction pro rata with the reduction in Mr. Gleeson's fee. However, it seems to me that the total of the altered allowances for non-refresher items in relation to the representation of Mr. Goodman, £277,300, which is less than 50% of the corresponding amounts allowed for the representation of the Companies meets the objective standard, whereas the total amount of refresher fees allowed by the Taxing Master in the representation of Mr. Goodman, which represents 67% of the total amount of refresher fees allowed in the representation of the Companies, would not meet the objective standard. The additional work reflected by the higher refresher rate claimed by Mr. O'Donnell is to the account of his client, not to the account of the Minister.

173. Viewed as a whole, the fees in respect of non-fresher items and refreshers which I have allowed in respect of each counsel I believe satisfy the criteria stipulated in Kelly -v- Breen .

174. In her judgment in the Judicial Review proceedings, Carroll J. interpreted the order of the Tribunal and, in particular, paragraphs (c) and (d) of the order and set out the following principles at page 12-13:-

175. In relation to the other disbursements in issue on this review, it was submitted on behalf of the Minister that if the beneficiary of such a disbursement was not a witness or a potential witness, but was rather an adviser or consultant, the question whether his costs are recoverable falls to be decided by ordinary principles of taxation. It was further submitted that, as a matter of principle, such items fall into the category of luxury and are not recoverable. It was further submitted that, subject to one qualification, there is no precedent for the allowance of costs of advisers on a party and party taxation. The qualification relates to Northern Bank -v- Charleton . It was suggested that in that case the High Court expressly directed that the costs of the successful defendant should include the costs of a named adviser who had assisted that party but who had not given and had not been engaged to give evidence at the trial.

176. Counsel for the Companies and Mr. Goodman submitted that the correct position is that if the costs, charges and expenses of the various advisers come within Order 99, Rule 37(18) they are allowable. Reference was made to the following passage of Butler J. in Kelly (an infant) -v- Hoey , (18th December 1973, High Court, unreported), which, as part of a longer passage, was quoted as being helpful in the judgment of Gannon J. in Crown Chemicals Company (Ireland) Limited -v- Cork County Council , [1984] I.L.R.M. 555:-

177. It seems to me that in reviewing the determination of the Taxing Master in relation to the disbursements other than Counsels' fees I should apply the principles enunciated by Butler J. My interpretation of those principles is that the costs, charges and expenses which are allowable provided they come within Order 99, rule 37(18) are those incurred in retaining persons who do not become witnesses but who give opinions, advice and information of an expert or technical nature. This interpretation is consistent with section 27(2) of the Act of 1995 which empowers the Taxing Master on a party and party taxation to allow the costs of "any expert engaged by a party".

178. This disbursement relates to a total sum of £76,000 paid by A&L Goodbody to Craig Gardner/Price Waterhouse in respect of support provided by the accountancy firm in the area of customs law and procedures particularly in relation to the common agricultural policy. This disbursement was allowed in full by the Taxing Master. The Minister's position is that it should be disallowed in totality.

179. I have no doubt that the Taxing Master correctly categorised the accountancy firm as advisers. However, the advice given was in the nature of legal advice and, indeed, the evidence is clear that the members of the firm involved in giving the advice saw their role as part of Goodman's legal team giving specialist advice in relation to customs and excise law.

180. The only issue which arises on this item, it seems to me, is whether, as submitted on behalf of the Minister, the costs of employing a solicitor and counsel provided for in the orders of the Tribunal encompass all the legal expertise necessary, so that the Solicitor was not entitled to buy in legal expertise at the cost of the paying party on a party and party bill. As a matter of fundamental principle, it seems to me that the submission made by the Minister must be correct and that, if a Solicitor out-sources legal expertise, even if as in the instant circumstances it is cost effective to do so, the cost of doing so must be to the account of the client and is not properly allowable on a party and party taxation. To hold otherwise in the instant case would effectively negative the numerical limitation on lawyer representation contained in the Orders of the Tribunal.

181. Accordingly, this item is disallowed in total.

182. This item relates to fees totalling £162,361.83 charged by Mr. Heneghan, a public relations consultant, for services rendered to the Companies and Mr. Goodman in connection with the Tribunal. The Taxing Master allowed this item in full. The Minister's position is that it should be disallowed in totality.

183. The nature of the services rendered by Mr. Heneghan, who was described as falling into the category of expert advisor, were described as follows in the following passage from the Report of the Taxing Master on the taxation, which he repeated in his Report on the objections:-

184. It was not suggested on behalf of the Minister that there was anything inappropriate in the retainer by the Companies and Mr. Goodman of a public relations consultant to protect their interests. On the contrary, it was acknowledged that it was an entirely legitimate call to make in relation to a matter where there was undoubtedly going to be significant publicity and where there was a realistic fear that it might be adverse. The Minister's objection to this item is that it does not come within the ambit of the Orders of the Tribunal at all.

185. The costs awarded to the Companies and Mr. Goodman were the "costs of appearing before the said Tribunal" taxed on a party and party basis. What they are entitled to recover from the paying party are the costs which were necessary or proper for the attainment of justice or for enforcing or defending rights. As was argued on behalf of the Minister, the manner in which a party who is allowed representation at a Tribunal attains justice and vindicates his rights is by being in a position, with the assistance of a legal team, to test evidence adduced which may be adverse to his interest, to call evidence which may be favourable to his interest and to make submissions to the Tribunal. As was submitted on behalf of the Minister, Mr. Heneghan's role was not to assist in the appearance and representation of the Companies and Mr. Goodman before the Tribunal; it was to assist in influencing the image projected through the media to the public of the events taking place before the Tribunal. No doubt the services rendered by Mr. Heneghan were valuable in protecting the reputation of the Companies and of Mr. Goodman. However, in my view the submission made on behalf of the Minister that such services do not come within the concept of legal costs at all is correct and the cost of such services is not recoverable on a party and party taxation.

186. Accordingly, this item is disallowed in totality.

187. This item relates to fees aggregating £116,503.47 claimed by Stokes Kennedy Crowley for services rendered in connection with taxation and Section 84 loans issues. The Minister's position is that they should be totally, or, alternatively, partially disallowed.

188. The fees claimed were allowed in full by the Taxing Master. Stokes Kennedy Crowley were the auditors and tax advisers to the Companies for many years. The accountancy firm was granted limited representation before the Tribunal in its own right. It was conceded on behalf of the Minister that the costs claimed on this item do not overlap with the costs incurred by Stokes Kennedy Crowley in connection with their own representation before the Tribunal.

189. Sean Mooney, a partner in the firm, gave evidence before the Taxing Master on the hearing of the objections. I have read the transcript of Mr. Mooney's evidence in conjunction with the six page document headed "Tribunal Work" put in evidence. In my view the evidence does not establish, save to a very insignificant extent, that the services rendered were in the nature of legal services or legal expertise. The services rendered were largely information retrieval, verification and presentation of information, which, although predominantly historical, was also current, in an accessible form. The significant factor, in my view, is that the information related to taxation and section 84 loans, areas of considerable complexity in respect of which Stokes Kennedy Crowley were and had been expert advisers to the Companies and Mr. Goodman. I reject the Minister's objection that this item should be disallowed on the same basis that item referable to Craig Gardner/Price Waterhouse was disallowed.

190. There is an argument that to some extent Goodman personnel should have produced the necessary information for the legal team. Mr. Mooney dealt with this argument in his evidence and he explained the then prevailing situation in the Goodman group which had gone into examinership a year earlier. In the light of the evidence, I think it was reasonable for the companies and Mr. Goodman to retain the services of Stokes Kennedy Crowley to do this work, which I consider in the main to be of an expert or technical nature and I think the work was necessary and proper within the meaning of Order 99, Rule 10(2).

191. The Minister specifically objects to part of this item amounting to £28,000 which relates to attendance at the Tribunal to be available to assist the legal teams on days when taxation and Section 84 loan issues were being dealt with. It was submitted that on the authority of the decision of this Court (Kelly J.) in Tobin & Twomey Services Limited -v- Kerry Foods Limited , [1999] 1 ILRM 428 the attendance of Mr. Mooney at the Tribunal was in the nature of a "luxury" and does not properly fall within the ambit of party and party costs. The factual situation in the instant case is wholly distinguishable from the factual situation which arose in Tobin & Twomey Services Limited -v- Kerry Foods Limited , where the proceeding in issue was an interlocutory application heard on Affidavit. In my view it was reasonable for Mr. Mooney to attend the hearings of the Tribunal when evidence was being adduced on taxation and Section 84 loan issues to assist the Goodman legal team should then acquire assistance. The situation would not have been met by perusal of the overnight transcript.

192. I consider that Stokes Kennedy Crowley are properly categorised as expert advisers and that the costs for their services are allowable against the Minister.

193. This item relates to fees aggregating £118,157.66 in respect of services rendered by Somers & Associates, a firm of chartered accountants. These fees were allowed in full by the Taxing Master. The Minister's position is that they should be disallowed in totality.

194. The evidence indicates that the principal of the firm, Bernard Somers, was the liaison financial director of Goodman International Limited. On the taxation Mr. Behan told the Taxing Master that the firm was "too close to the company to be ever witnesses because of that relationship". Mr. Behan described the task undertaken by the firm as follows:-

195. Michael Flynn, a chartered accountant with Somers & Associates, who was involved in the task, testified before the Taxing Master on the hearing of the objections. I have read the transcript of his testimony carefully. The exercises which he and his colleagues were involved in were the assembling and collating of data for the purpose of briefing the legal team and other experts. Some of the data was sourced from the Companies, some from public sources such as the Central Statistics Office. In my view, the Minister's submission that the work could have been done internally within the Companies is borne out by the evidence. I am not satisfied that it required the expertise of a firm of chartered accountants. It seems to me that the nature of the work was accurately described by Mr. Behan at the taxation on 11th June, 1996 when he stated:-

196. In my view the costs of the services rendered by Somers & Associates are not recoverable on party and party taxation.

197. Accordingly, this item is disallowed in totality.

198. The item relates to a claim for travelling expenses and fees aggregating £37,953, which was allowed in full by the Taxing Master. The Minister's position is that it should be totally disallowed.

199. Mr. Britton was the former group financial director of the companies. He resigned on 22nd September, 1990. He incorporated Britton Consultants Limited in January 1991 and through the medium of that company he provided consultancy services and project management services and such like.

200. It is clear from the evidence that Mr. Britton had a pivotal involvement in the Tribunal. Shortly after the establishment of the Tribunal he was contacted by the leading Senior Counsel for the Tribunal and asked to furnish a statement, which he did from memory in August 1991. His main statement, which was requested by the Tribunal, was submitted on 3rd March, 1993. He testified before the Tribunal between 4th March, 1993 and 9th March, 1993. Mr. Britton was granted representation by the Tribunal on 8th September, 1992 and on 29th July, 1994 an Order for costs was made by the Tribunal allowing him the costs of employing a solicitor and one counsel. The taxation of Mr. Britton's costs had not commenced when the hearing of the objections in this matter were before the Taxing Master at the end of January, 1997.

201. As to his involvement in Tribunal matters for the Companies, Mr. Britton testified that he had been asked to assist because the Tribunal had requested the Companies to allow him access to files and records to enable him to prepare a statement specifically on the IDA five year plan and export credit insurance. It suited the Companies that Mr. Briton would assist them in preparing the disclosure documents, which I assume means discovery, on export credit insurance, the IDA five year plan and on Section 84 and "the overall view of Goodman's". As to the Companies' instructions to him, Mr. Britton testified that he was asked to co-operate with them and to meet their professional advisers and assist on the issues of export credit insurance, the five year plan and other issues to do with taxation matters, Section 84 and financing matters.

202. On Mr. Britton's evidence, his total involvement in relation to the Tribunal "time wise" was 600 hours. This included his contacts with the leading counsel for the Tribunal, preparing statements, dealing with his own legal team in relation to his own legal representation, testifying, monitoring the testimony of other witnesses and giving the assistance sought to the Companies. The hourly rate of charge which Britton Consultants Limited charged for his services at the time was £150 per hour. His involvement in relation to the Tribunal took him away from his professional work and the time he gave to the Tribunal was time for which he would normally be charging clients.

203. The claim on this taxation for the sum of £35,000 in respect of fees is based on an invoice dated 18th March, 1993 issued by Britton Consultants Limited claiming that sum for "professional services rendered by Brian Britton between May 1991 and March 1993 in connection with the Beef Tribunal". Apparently, the invoice was discharged in March 1993. On the hearing of the objections, Mr. Britton testified that his overall claim for remuneration for his time involvement with the Tribunal was £92,345. As to the circumstances in which the Companies paid him the sum of £35,000, he testified as follows:-

204. The Taxing Master in his Ruling on the objections stated that Mr. Britton's function was to give factual evidence and that he was entitled to his reasonable costs for preparation of his statements, for attending the Tribunal and for travelling and subsistence. This statement echoes paragraph (d) of the Tribunal Order. The Taxing Master allowed the sum of £2,953 claimed for travelling and subsistence on the basis that it was reasonable. Counsel on behalf of the Minister made a legitimate, if somewhat trivial in the overall context of this review, point that the sum of £2,953 was not vouched. Having quoted the submission made by Mr. Behan in relation to "fees for preparation and attending the Tribunal" on the taxation and having referred to the decisions of the High Court and the Supreme Court in Staunton -v- Durkan , [1996] 2 I.L.R.M. 509 the Taxing Master in his Report on the review before him went on to say:-

205. The main thrust of the Minister's objection to the allowance of this item is that the Taxing Master erred in principle in that he remunerated Mr. Britton on the basis that he was an expert witness and not merely a witness of fact. A witness of fact, it was contended, is not entitled to charge for preparation for and attendance at the trial unless he can establish that he has actually incurred a loss and the decision of Blayney J. in Staunton -v- Durkan was cited in support of that proposition. It was contended that Mr. Britton had not established a loss before the Taxing Master.

206. However, the claim advanced on behalf of the Companies was not a claim to recover the remuneration of Mr. Britton in relation to the preparation of his statements for and his attendance at the Tribunal. It was a claim to cover his remuneration for the assistance he gave to the Companies in relation to various historic matters and it was submitted that the work he carried out was necessary for the Companies to enforce or defend their rights.

207. Under the Orders of the Tribunal, the costs awarded to the Companies and Mr. Goodman include the costs of witnesses who actually testified before the Tribunal "on the proposal of the applicants". As I understand the evidence, Mr. Britton was the Tribunal's witness and he was not called on the proposal of the Companies and Mr. Goodman. That being the case, the Companies and Mr. Goodman are not entitled to include his charges as witnesses' expenses entitled to be recouped under paragraph (d) of the Order in their bills of costs. In my view, the Taxing Master misconceived the nature of the claim in treating it as a claim for witnesses' expenses. It is a claim for services rendered in assisting the Companies and Mr. Goodman in the preparation of their case.

208. No doubt Mr. Britton's services were valuable to the Companies and Mr. Goodman and he is clearly entitled to be remunerated for them. However, the issue here is whether, under the Orders of the Tribunal, the Minister is obliged to indemnify the Companies and Mr. Goodman in respect of their payment to Britton Consultants Limited for Mr. Britton's services at the rate of £150 per hour. Even assuming that £35,000 worth of the overall services rendered by Mr. Britton is properly ascribable to his involvement on behalf of the Companies and Mr. Goodman, in my view, the Minister is not. Mr. Britton's services were valuable to the Companies, not because of his professional expertise or technical ability, but because of his historic connection with the Companies. In relation to this taxation he is not properly classifiable as an expert. His expenses in connection with his role as a witness before the Tribunal must be dealt with in the taxation of his own costs.

209. Accordingly, this item is disallowed in totality.

210. This item relates to a sum of £33,906.17 paid by the Companies and Mr. Goodman for the provision of catering services between 5th July, 1991 and 21st May, 1993. It represents a charge of £80 per day for the availability of the catering service in Arran Court, the office complex used by the Companies for the duration of the Tribunal, not with the provision of food. While no doubt the availability of a catering service was convenient, it has not been established that it was either necessary or proper within the meaning of Order 99, Rule 10(2). In so holding, I am taking judicial notice of the fact that in 1991 there was no shortage of establishments providing food and beverages in the environs of Arran Court and Dublin Castle.

211. Therefore, this item must be disallowed.

212. In Appendix B annexed to this judgment, I have summarised in tabular form the effect of the foregoing judgment. The Order will be in the terms of Column 2 of the Table.