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1. This is an appeal brought by "The Workers Party" against a finding of the Taxing Master in respect of item 194 of a Bill of Costs on foot of an Order for Costs in favour of a non-party in an Application for Non-Party Discovery. The item is a very substantial one and what is essentially involved in it is a claimed charge by the party for the services of their general secretary Patrick Quearney and substantial payments for senior members of the party and certain officers for work done in connection with the preparation of the discovery. In a forthright ruling the Taxing Master Mr Flynn disallowed item 194 in it's entirety. The matter came to be reviewed by him again in the usual way upon objections being taken and in a more prosaic second ruling he affirmed the view which he had originally taken.

My clear impression from the first ruling is that the taxing master was understandably exasperated at what he saw as a wholly exaggerated claim being put forward for the most part on behalf of individual members or officers of the Workers Party. But in so far as he made a nil assessment I think that he was wrong. If I am right in my view that such an extreme finding was wrong it was by definition also unjust. But in my view there are other aspects of injustice in the whole tone of the first ruling. The members of the Workers Party could not reasonably be satisfied that they had had an unbiased hearing having regard to the very unusual comments contained in the ruling and which were hardly warranted on the evidence before the taxing master and indeed were to a large extent irrelevant. The root cause of the problem in my view is that the taxing master effectively allowed himself get drawn in to the whole difficult area of legal responsibility on the part of an unincorporated body. That kind of analysis would seem to me to be more appropriate to the judge trying the case or matter than to the taxing masters. The taxing master was carrying out a taxation pursuant to a particular court order that is to say the Order of Costello P made the 2 February, 1997. The relevant part of that order is on the face of it quite simple. It says merely:-

"AND IT IS ORDERED that the Workers Party do recover as against the defendant its costs of this application when taxed and ascertained".

It is obvious from the form of that order that the parties appearing before Costello P, and Costello P, himself avoided the technical problems of who exactly should be named in the case of an unincorporated body and simply made an order against "The Workers Party". This was a sensible pragmatic course in the circumstances. What it meant in my view was that Independent Newspapers had to reimburse the Workers Party funds in so far as the party incurred cost in making the discovery. This simple statement by me however begs questions.

In so far as senior or retired members devoted many hours to the discovery process is their time to be paid for? Contrary to the view of the taxing master I think that the answer is "yes". It is not that they are entitled to claim as individuals in the taxation but rather it would be reasonable that if a small political party such as the Workers Party was required to make non-party discovery it could pay reasonable sums to those among its members and officers who were involved in the work and I think it is wrong to take the view that because of some clauses in the party's constitution or otherwise, they are all volunteers bound to help the party and that no sum can be recovered for their work. Especially in the context of non-party discovery I think that that would be most unfair and unreasonable and I do not believe it to be the law.

As far as Mr Quearney himself is concerned he is a salaried officer of the party and the claim put forward in respect of his services would seem to be grossly excessive for the reasons indicated by the taxing master. The taxing master has calculated that Mr Quearney's salary works out at approximately £8.33p per hour but the claim put forward in respect of his services is tantamount to a figure of £120.25 per hour. That works out at approximately fourteen times his real hourly rate. It would seem to me that the most that should be allowed in respect of his services is the number of hours which he had to spend in connection with the discovery multiplied by £8.33. Those who worked on the discovery and who were not on a salary can expect in my view to be reasonably remunerated by the party for the reasons which I have indicated. The party can therefore recover that remuneration. But I think it must be on the modest end of a spectrum of reasonableness. While I am tempted to fix figures myself there would be a danger that I would be guessing and I would not be able to avail of the expertise which the taxing masters have.

I appreciate that Independent Newspapers put up the argument that there is an onus of proof and that that was not adequately discharged and that the taxing master cannot engage in guess work. I agree with that up to a point but I think that there was enough evidence to have enabled the taxing master to have awarded considerably more than nil. The proper course now in my view is to send the matter back to the taxing master for reconsideration of item 194 but for reasons which I will elaborate upon I am satisfied that the fresh taxation should be done by the other taxing master. I say this without casting any aspersions on Mr Flynn but unfortunately many of the colourful remarks contained in his first ruling would not give any confidence to the Workers Party that there would be an unbiased assessment. This does not mean that I am in any way suggesting actual bias but I am talking of what is well known to all lawyers as apparent bias. To give a flavour of what I mean I intend now to quote a number of passages contained in the original ruling of the taxing master. At page 9 of the first ruling and into the next page the following passage appears:-

"The discovery sought was indeed necessary to the proceedings. However, the Workers Party made very heavy weather of it. In fact, in relation to the work that the discovery necessitated, Workers Party would seem to be in a contradiction in terms. The party seems to have created an ingenious device for obtaining individual reward without individual effort compounded by the fact that the Party had chosen a group to assist with the discovery, who were unwilling, to do unnecessary assignments, purporting to comply with the Order, which did not admit the herculean task that the Party seems to indicate it did. This dichotomy, like surrealism, is a misinterpretation of the very purpose of a political party, namely, a party for the workers, in spite of To some extent the Workers Party have contributed to what has happened by what the workers and to hell with the workers. It is an encouragement to those who have lost faith in their own capabilities to keep plodding on, the blind leading the blind."

At page 13 the following further passage is to be found:-

"The Workers Party recognise that it's membership may be imposed upon to render services to the party when called upon to do so, the enthusiasm should be so sound that it easily endures the strain to which the member's unflagging industry subjects it. Work banishes those three great evils, boredom, vice and poverty."

On page 18 and the following pages this further passage appears:-

"In my opinion the substratum of the Worker's Party is or should be political and it is important that this should be born in mind, as it is a consideration to which I have more than once averted to during the course of this ruling. The Workers' Party's claim in this respect presents the feeling of the absurd lacking rationality and clarity and silent in reason. Indeed, the Party on this front is cutting it's own throat, it's prepared to bill others at a rate which is fourteen times what they believe to be a fair and reasonable rate and prefers to pay loyal members at a base rate which contradicts its political ethos. It is a classic case of political double standards. The Political Party Machine is provided with good grub, good pay and no work but the membership of the Party is given poor grub, poor pay and hard work. In this regard even when expenses are claimed by its membership they must yield up to the Party that which the Party considers they cannot keep as provided for in their rules of paragraph 2.5. This type of "double-think" cannot be forced upon the defendant in seeking costs such as these and it is clear that for the Workers' Party the only place where fairness comes before work is in a dictionary."

I do not think I am being unfair to the taxing master in suggesting that these kind of comments in a ruling on taxation are highly unusual and unorthodox and in my view whatever their intention, they cannot have given any confidence to the relevant members of the Workers Party that their claim was being fairly disposed of. Having taken the view that the nil allowance was erroneous and unjust I have for this reason also taken the view that in remitting the matter back to the taxing master I should direct that in the exceptional circumstances of this case it be dealt with by the other taxing master. I intend to so order.

I am of course well aware that in the second ruling the philosophy was omitted and more mundane reasons were given for affirming the original decision but as I see it the damage was already done. In that respect I agree with the submissions of Dr Forde.

To some extent the Workers Party have contributed to what has happened by what appears to have been a wholly excessive claim particularly in relation to Mr Quearney. Fresh evidence can be admitted before the second Taxing Master and whatever would be reasonable sums and as I say on the modest end of the spectrum of reasonableness can be allowed except of course in the case of Mr Quearney's time where a different approach should be adopted. As far as actual liquidated expenses are being claimed these should be vouched as far as possible where there are vouchers. If there are not, then they should be adequately proved as best can be done.