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1. This is a further battle in the war of arbitration and litigation which has been conducted between these parties over the last few years. On this occasion they are locking horns over the costs of a previous skirmish. The Plaintiffs seek a review of certain items allowed against them in the taxation of those costs. Before I deal with the detail, I must paint the backdrop against which this application must be viewed.

2. The Plaintiff entered into an agreement with the first named Defendant in January, 1992 for the carrying out of certain electrical works. The agreement contained an arbitration clause. Disputes arose between the parties which were referred to arbitration. Ultimately, that arbitration commenced on the 22nd May, 1995. A preliminary issue was raised by the first Defendant concerning what works were included in the reference. After seven days hearing, commencing on the 26th May, 1995, the arbitrator made an interim award in which he found that certain additional works did not form part of the contract and they were excluded from the reference. The Plaintiff continued with the arbitration. The Plaintiff's principal witness, Mr Tobin, gave evidence in chief for 8 days. On the 6th July, 1995 the Plaintiff indicated that it was going to issue writs against the Defendants' Consulting Engineers, the first Defendant and the second Defendant but the arbitration still continued.

3. On the 7th July, 1995 the Plaintiff asked the arbitrator for an adjournment saying that new disturbing facts had emerged which could not be disclosed. The arbitration resumed on the 18th July, 1995. On the 20th July, 1995 the present proceedings began by the issue of a plenary summons. On the same day a notice of motion was issued by the Plaintiff returnable before the Court on the 28th July, 1995. In essence two reliefs were sought. The first was an Order pursuant to Section 39 of the 1954 Arbitration Act that the agreement to submit disputes to arbitration should cease to have effect and the revocation of the authority of the Arbitrator was also sought. In addition a mareva injunction was sought seeking to restrain the Defendants from reducing assets to less than a sum of one million pounds.

4. Two Affidavits were sworn to ground that application, one by Mr Tobin, the Managing Director of the Plaintiff and the other by Mr Mangan, a Chartered Accountant and partner in the firm of Coopers and Lybrand. The arbitration had been conducted between the Plaintiff and the first named Defendant but the second named Defendant came into the picture for the first time when these proceedings commenced. The basis upon which this second Defendant was joined was an allegation of conspiracy between the first and second named Defendants against the Plaintiff. Amongst other things it was alleged that there was a possibility that the first named Defendant was insolvent.

5. The Motion seeking these reliefs came on on the 28th July, but was adjourned to the first Vacation Sitting which took place on the 9th August, 1995.

6. The only evidence which I have as to what took place on the 9th August, 1995 is the sworn testimony of Mr Bolger, Solicitor, a partner in the firm of O'Flynn Exhams, Solicitors for the Defendants. I am satisfied from his evidence that on that day the Motion was opened by Counsel for the Plaintiff before the Vacation Judge, Costello P. Having had the facts of the case outlined to him for a few minutes, he expressed the view that the application did not qualify for inclusion as Vacation business and the motion was then adjourned to the 2nd October, 1995. No Order was made concerning the costs of the hearing on the 9th August, 1995.

7. The Motion was heard and fully contested over three days before Carroll J. on the 2nd, 3rd and 4th October, 1995. She reserved Judgment which she delivered on the 6th October, 1995.

8. The reliefs sought by the Plaintiff were refused and the Defendants were awarded their costs of the Motion and Order when taxed and ascertained. It is some of these costs which are the subject of the instant appeal.

9. Section 27(3) of the Court and Court Officers Act, 1995 provides, insofar as it refers to the Taxing Master rather than the County Registrar, as follows:-

10. This statutory provision was considered by McCracken J in Phillip Smyth and Genport Limited v. Tunney and Ors (Judgment 12th June, 1998). He said:-

11. I respectfully agree.

12. There are five categories of item in dispute between the parties. They are:-

13. The Order made by Carroll J on the 6th October, 1995 recites that the Motion was at hearing before her on the 2nd, 3rd and 4th October, 1995. It makes no mention of what happened in August, 1995 and as I have already recited no Order as to costs was made in respect of that date. The Defendants were Ordered to recover against the Plaintiff their costs of the Motion and Order when taxed and ascertained.

14. The costs awarded were on a party and party basis. Order 99 Rule 10(2) provides that on a party and party taxation

15. It is clear that the basis of party and party costs is one of indemnity (see Attorney General (McGarry) -v- Sligo County Council (No. 2) (1989) ILRM 785).

16. These items deal with solicitors' and counsels' fees in respect of consultations held on the 21st and 24th July, 1995 and the 4th August, 1995. There were mileage charges on the part of the solicitor involving travel from Cork to Dublin. These were not reduced by the Taxing Master. Senior Counsel charged a composite fee of £525 in respect of these three consultations. His junior counsel marked a fee of £350. Senior Counsel's fee was reduced by £175 on taxation. Junior Counsel's fee was reduced by £116.66 on taxation.

17. The Plaintiffs seek a further disallowance in respect of Counsel's fees on the basis that they are not allowable on a party and party taxation. The Plaintiffs contend that the Taxing Master did not adequately assess the necessity of the consultations involved or whether it was proper for the attainment of justice to hold such a number of consultations. It is also said that the Taxing Master did not adequately assess the reasonableness of the expenses and allowances involved.

18. Reliance was also placed upon the Judgment of Malins VC in Smith -v- Buller 19 Eq 473 where he said:

19. The Taxing Master dealt with this issue in his written ruling as follows:-

20. I have had an opportunity of reading the Affidavit evidence with which the Defendants were confronted at the end of July 1995. The principal grounding Affidavit ran to some forty-seven paragraphs. The Affidavit in support ran to twenty paragraphs and was sworn by a partner in one of the largest firms of accountants in the State. The Defendants had not merely to deal with claims being made under the Arbitration Acts but also had to defend an application for a Mareva Injunction in which an allegation of possible insolvency on the part of the first named Defendant was raised. In addition there were serious allegations of a conspiracy as between the Defendants which also had to be dealt with. It is clear that very considerable pressure was being exerted with a view to having the matter pressed on for hearing. It was first listed for the last motion day of the legal year and then was listed for the first available vacation sitting. Consequently, replying affidavits had to be prepared with speed and due consideration had to be given to their contents, particularly those dealing with the financial affairs of the Defendant companies. The fee allowed to senior counsel amounts to £350. In the context of this litigation that does not appear to me to be excessive nor do I regard the holding of three consultations in the preparation of Affidavits for the hearing as being in the nature of a 'luxury'. I have to bear in mind the serious allegations made, the urgent need to reply to them and the imminence of the hearing. In these circumstances I have come to the conclusion that the Taxing Master was correct and that allegations of error on his part and of injustice being done are without foundation. Consequently I refuse to disturb his finding in respect of these items.

21. These items deal with the costs of Solicitor and Counsel in respect of the hearing which took place on the 9th August, 1995.

22. I have already described what occurred at the hearing before Costello P. on that date. It had been suggested to the Taxing Master and again in the written submissions to this Court that the reason for the adjournment on that date was the indisposition of Counsel. I am satisfied from Mr Bolger's evidence that that was not so. Rather, Costello P. took the view that the matter to be dealt with in the motion did not qualify as vacation business and accordingly adjourned the case to the 2nd October, 1995.

23. The leading Counsel for the Defendants, marked a fee of £1,575 as a brief fee for the motion on the 9th August and his Junior marked the usual two thirds of that.

24. When the motion came to be heard before Carroll J. on the 2nd October, 1995 a further brief fee of £7,350 was marked by Senior Counsel with refreshers of £2,100 for each subsequent day of the hearing. His Junior marked two thirds of each of these fees. Objection is now taken to the recovery of the fees marked in respect of the hearing on the 9th August.

25. The motion dealt with on the 9th August, 1995 was the same motion which came on for hearing in October of that year. Counsel marked two brief fees in respect of it. One related to the 9th August and the second related to the 2nd October. Counsel should not charge two brief fees for the one motion. If he does it cannot be stood over on taxation. There was tacit acceptance of that by Counsel appearing on behalf of the Defendants on this motion. Instead of treating the fee marked in respect of the 9th August, 1995 as a brief fee (which is how it was described), I was asked to treat it as a refresher fee. Alternatively, I was asked to look upon it as being a sort of adjunct to the brief fee which was ultimately marked for the hearing which took place on the 2nd October, 1995 which, it was said, ought to be allowed having regard to the fact that the Plaintiffs retained two Senior Counsel on the hearing of that motion, both of whom individually charged fees in excess of the £7,350 brief fee marked by the Defendants' Silk.

26. I do not think that there is any basis for treating the matter in either of those ways. Even if there was, I do not think I would be justified in so doing. The plain fact is that there is no order for costs in favour of the Defendants in respect of the hearing which took place on the 9th August, 1995. The costs order made by Carroll J. clearly relates to the motion which was heard by her on the 2nd, 3rd and 4th October, 1995. No order was made by the then President in respect of the hearing on the 9th August, 1995.

27. In these circumstances I cannot see how the Defendants can recover costs which are not the subject of an order in their favour. The Taxing Master does not appear to have adverted to this but proceeded to tax the costs as though the hearing of the 9th August, 1995 was the subject matter of an order for costs in favour of the Defendants. As such was not the case I am of the view that the Taxing Master erred in allowing these costs. That error has given rise to an injustice in that the Plaintiffs would, if the Taxing Master's adjudication stood, be obliged to pay a sum in respect of costs which were never awarded against them. Accordingly, as far as these items are concerned, the Plaintiffs succeed and I disallow items 110, 111, 112, 113, 114 and 115 in the Bill of Costs.

28. Items 145 and 147 of the Bill of Costs relate to the taking of judgment on the 6th October, 1995. Senior Counsel marked a fee of £525 and Junior Counsel marked a fee of £350. On any view of it these are unusually large fees for the taking of judgment.

29. The Taxing Master, in his written ruling, said:-

30. Whilst that quotation deals exclusively with the role of a Solicitor, the Taxing Master, in dealing with the element of Counsel's fees for taking judgment merely says:-

31. The judgment in suit runs to fifteen pages. It could not have taken more than 45 minutes to deliver. The Defendants were wholly successful so it is difficult to see what "ramifications" had to be "interpreted" or what "options" had to be advised upon.

32. A fee of 500 guineas for the taking of judgment might be justified in cases where, for example, a judgment took all day to deliver, or where some extraordinarily intricate or difficult point had to be advised upon as a matter of urgency thereafter. Such considerations have no application here.

33. It cannot be doubted but that the fee is very much in excess of the norm. I am of the view that the Taxing Master was in error in allowing it and that an injustice results from that error. I am of the view that a fee of 150 guineas should be allowed to Senior Counsel for the taking of judgment. That is the sum which was allowed by the Taxing Master in respect of the Plaintiffs' Counsel for taking judgment in the Supreme Court on appeal from the order of Carroll J. That appears to me to be much more in keeping with the level of fee which ought to be payable here. I will therefore allow the Plaintiffs' application in this regard and substitute a fee of £157.50 in lieu of the £525 allowed to Senior Counsel and £105 in lieu of the £350 allowed to Junior Counsel at items 145 and 147 in the Bill of Costs.

34. A Solicitor's instructions fee of £22,000 was allowed by the Taxing Master. The Taxing Master in his report to the Court tells me that he considered the nature, complexity and difficulty of the actual case and that he was not convinced that the fee for the work performed was out of line with other High Court cases. He went on to say as follows:-

35. The Plaintiffs say that a comparative approach to the assessment of instructions fees is the correct one to adopt. They say that the rules of Court require a uniform approach to taxation to be adopted by the Taxing Masters as between them. Such being so, they say that the allowance of a sum of £22,000 in respect of an instructions fee does not follow such an approach. They say that in the Smyth -v- Tunney case from which I have already quoted, McCracken J. allowed a figure of £15,000 for a Solicitor's instructions fee. I am invited to allow this sum in the present case.

36. I think there is much to be said in favour of a uniform approach being adopted by each individual Taxing Master. It cannot be in the interests of justice that they should adopt widely diverging approaches to the question of costs. But that is not the issue here. I am asked to award the same brief fee as was fixed by McCracken J. in another case as the appropriate brief fee in the instant case. I do not think that that is the right approach. In the Smyth case McCracken J. was dealing with the costs of motions dealt with by the Supreme Court. The more important of the two motions sought leave to adduce additional evidence. I do not think that such a motion is comparable to what the High Court was dealing with here, nor do I have sufficient information concerning the Smyth case to be able to make an attempt at comparing the work done by the Solicitor in that case with that done by the Solicitor in the present case.

37. Whilst the instructions fee in the present case is high, I do not think that I can say that the Taxing Master erred in his approach to it. He appears to have applied the correct principles and has indicated that the fee for the work performed was not out of line with other High Court cases. In these circumstances I must conclude that the Taxing Master has not erred as to the amount of the allowance and consequently, I will not disturb his finding in this regard.

38. This dispute relates to item 160 in the Bill of Costs namely a fee of £10,400. That fee is attributable to the services of Messrs Deloitte and Touche, Chartered Accountants who were, of course, consulted by the Defendants particularly in relation to the allegations sworn to by Mr Mangan of Coopers and Lybrand. A partner in the firm of Deloitte and Touch swore two Affidavits, one on the 25th July, 1995 and another on the 8th August, 1995. Needless to say a good deal of consultation had to be undertaken in respect of those Affidavits. The way in which the Taxing Master deals with this item in his written ruling is as follows:-

39. The Plaintiffs say that professional fees ought not to be allowed in respect of the drafting of Affidavits as this is in the domain of Solicitor and Counsel. This rather ignores the reality of life in commercial litigation of the type in suit. Affidavits of this type have often (as indeed was the case here) to be drafted with a great sense of urgency. The actual drafting of the Affidavit is often a joint effort between Solicitor, Counsel and the expert witness. In order to save time, the Affidavit is composed with all of these parties gathered together, jointly contributing to the contents which ultimately have to be sworn to and stood over by the professional witness. I do not think that the Plaintiffs' approach in submitting that the work of drafting the Affidavits is exclusively within the domain of the Solicitor and Counsel is correct. The professional person who is swearing the Affidavit must give of his time in the preparation of such an Affidavit, particularly in urgent cases of the type being dealt with here and I share the Taxing Master's view that the professional person is entitled to be paid in respect of that effort.

40. In the present case of course, there was more than the deponent, Mr Brendan Jennings involved in the various consultations. Claims are also made in respect of other personnel from Deloitte and Touche. I do not think it unreasonable that the deponent of the Affidavit, Mr Brendan Jennings, should have assistance from other members of the firm who may have areas of knowledge concerning the affairs of the Defendants which might not have been readily to hand as far as he was concerned. I refuse to disturb the Taxing Master's finding on this question.

41. Finally, it is submitted on behalf of the Plaintiffs that it is wrong in principle to allow expenses in respect of the attendance of a witness at Court when that witness is not present to give evidence in Court. This relates to a claim which is made concerning Mr Jennings attendance at Court on three days. Mr Jennings had already given his testimony in the form of an Affidavit. It was not necessary therefore, that he should attend Court since he was not being called upon to give evidence viva voce. It may very well have been that Counsel directed his attendance lest any accountancy issue might arise upon which Counsel would require assistance. That, in my view, is not a matter in respect of which the Plaintiffs ought to be liable to the Defendants. It does not in my view properly fall within the ambit of party and party costs.

42. If the Defendants wished to have Mr Jennings in Court in circumstances such as this it is a matter for their account and not that of the Plaintiffs. It is in the nature of a 'luxury'.

43. Accordingly, I will disallow the 12.5 hours claimed in respect of attendance at Court on three days in October, 1995. I will also adjust downwards the 10 hours claimed in respect of "preparation and attendance at hearing" for the period ended 12th August, 1995. I do not have a breakdown as between what amounted to preparation and what was involved in the attendance at hearing. I will therefore, attribute 5 hours to preparation and 5 hours to the attendance at the hearing. This gives rise to a total deduction of 17½ hours of Mr Jennings' time which was charged out at £145 per hour. This results in a total deduction of £2,537.50 from the amount of £10,400 allowed by the Taxing Master. To this extent therefore, the Plaintiffs' review is successful.