Sunday 15 December 2019

Court of Appeal overturns ruling which almost halved €485,000 fee claimed by solicitors in medical negligence case

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Tim Healy

THE Court of Appeal has overturned a ruling which almost halved a €485,000 fee claimed by solicitors in a medical negligence case.

A fresh assessment to decide the appropriate fee has been ordered.

Wicklow-based firm Augustus Cullen Law appealed after the High Court upheld a Taxing Master's decision allowing a €276,000 instruction fee and not the €485,000, based on €375 an hour, claimed.

In its decision, the appeal court allowed the appeal on several grounds but said the problems assessing costs here arose due to failures of the solicitors, their legal costs accountants and the Taxing Master.

Bills of costs in general fail to set out proper details of professional services charged for and fees for those, Mr Justice Brian Cregan said on behalf of the three-judge court.

Solicitors and legal costs accountants "have lost sight over the years" of rules concerning proper bills, he said.

This firm accepted it failed to keep a proper record of hours worked on the case, providing figures ranging from 490 to 1,200 hours.

Their legal costs accountants also submitted an "impenetrable" bill of costs on their behalf where the €485,000 figure "emerges out of

nowhere", he said.

The Taxing Master should have realised this Bill had none of the necessary information about who in the firm carried out the particular service, their seniority, appropriate hourly rate, how long their work took and how much was charged for each service.

That information was needed to build an instruction fee "from the ground up", he said.

The Taxing Master also erred in failing to accept the firm's offer to provide a reconstruction of hours worked and failing to apply the correct methodology to his assessment, he ruled.

The Taxing Master and High Court also erred in not giving sufficient regard to the amount of time involved in this complex catastrophic injury case where causation remained an issue for some years.

While the solicitors complained the Taxing Master simply "looked into his heart" to find the €276,000 sum, the same could be said of their

€485,000 and this underlined the need for "objective" assessments, based on proper bills of costs,  of work done.

Rejecting arguments the solicitors fee should be calculated not just on hours worked but also take into account their skill and specialised knowledge, he said the argument a particular chargeable rate per hour represents a "plodder's charter" which is "unsustainable in the modern world".

The judge noted, while this taxation concerned a case that ran for five days, the hearings over costs took 12 days and said there "must be something wrong with a taxation process that it would take so long to resolve such a dispute".

He directed the Taxing Master reassess the appropriate instruction fee, based on a "proper" Bill of Costs, in accordance with the correct methodology and complexity of the case.

In his 2015, the High Court upheld the Taxing Master's €276,000 decision.  Then-High Court President, Judge  Nicholas Kearns, had challenged "comfortable assumptions" about legal fees, saying they should more realistically reflect the "financial and economic catastrophe" that imposed "privations" on many.

The costs issues related to a five day hearing in proceedings issued in November 2009 on behalf of Isabelle Sheehan, Millbrook, Mallow, Co Cork, against an obstetrician, Dr David Corr, carrying on private practise at Bon Secours Maternity Hospital, Cork.

Dr Corr in November 2010 admitted negligence managing the ante-natal care of Isbaelle's mother Catherine.

The issue whether that negligence caused Isabelle to develop cerebral palsy remained until it was conceded in September 2011.

An assessment of damages hearing followed, settling after five days in October 2011 on an interim basis for €1.9m. On foot of later payments amounting to a total €11.6m, the case has finally settled.

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