Sheehan v Corr

Factual and Procedural Background

The underlying litigation concerned a catastrophic birth-injury claim brought by the Plaintiff (an infant, acting through her mother) against the Defendant, a consultant obstetrician. Liability was admitted, causation was initially contested but later conceded, and the High Court approved an interim settlement of €1.9 million together with an order that the Defendant pay the Plaintiff’s party-and-party costs when taxed. A bill of costs claiming a general instructions fee of €485,000 was lodged for taxation before The Taxing Master.

After a two-day taxation hearing (September 2012) The Taxing Master measured the instructions fee at €270,000. The Plaintiff filed formal objections; following three further hearing days the fee was marginally increased to €276,000 (May 2014).

The Plaintiff sought High Court review under Order 99 r.38(3) of the Rules of the Superior Courts. Judge [High Court] (February 2015) affirmed the taxation. The Plaintiff then appealed to the Court of Appeal, which (June 2016) allowed the appeal and remitted the entire instructions fee for fresh taxation, holding that The Taxing Master had adopted the wrong methodology.

The Defendant obtained leave to appeal to the Supreme Court. Four issues of public importance were framed, and two professional bodies – Entity A (representing solicitors) and Entity B (representing barristers) – participated as amici curiae. The present judgment decides the Defendant’s appeal.

Legal Issues Presented

1. Whether “time actually spent” may be given primacy over the other criteria listed in Order 99 r.37(22) when fixing a solicitor’s instructions fee.
2. If time is central, should The Taxing Master permit retrospective reconstruction of time records, and in what circumstances?
3. Whether The Taxing Master may disallow the cost of having two solicitors present at trial, and how that discretion is reviewed.
4. The extent to which general economic conditions may affect the assessment of instruction or brief fees, and how such economic circumstances should be evaluated.

Arguments of the Parties

Appellant’s (Defendant’s) Arguments

• The bill of costs complied with Order 99; The Taxing Master correctly rejected the Court of Appeal’s demand for a re-drawn bill itemising hours and hourly rates.
• The Court of Appeal erred in elevating “time spent” above the other mandatory criteria; such elevation rewrites Order 99 and has no statutory basis.
• The Taxing Master’s methodology (derived from Case A) lawfully examined the nature and extent of work without pricing every sub-item by the hour.
• Disallowing a second senior solicitor was within The Taxing Master’s discretion under Order 99 r.37(18) and s.27(2) of the 1995 Act.
• General economic conditions are relevant only as a contextual factor; across-the-board percentage cuts or economist reports are impermissible.

Respondent’s (Plaintiff’s) Arguments

• The Taxing Master wrongly treated time as a mere “cross-check” and failed to ascertain hours spent, contrary to Case A and Case B.
• Retrospective reconstruction of time should have been permitted; its refusal denied the Plaintiff a fair opportunity to substantiate the fee.
• Two senior solicitors were necessary for simultaneous negotiations and court management in a complex, high-value assessment of damages.
• The economic downturn required transparent, evidence-based reductions; The Taxing Master applied a discount without evidential foundation.

Submissions of Entity A (Solicitors) and Entity B (Barristers)

• Order 99 imposes no obligation to keep or exhibit contemporaneous time records; requiring them retrospectively has caused delay and cost inflation.
• Any discretionary direction to reconstruct time must respect Article 6 ECHR requirements of expedition and fairness.
• For barristers, fees are rarely time-based; forced hourly reconstruction is impractical and distorts market practice.

Table of Precedents Cited

Court's Reasoning and Analysis

1. Primacy of Time. Order 99 r.37(22) lists multiple factors (complexity, novelty, responsibility, and time). Elevating one factor distorts the statutory scheme. The Court of Appeal’s three-step model (hours → hourly rate → later adjustment) impermissibly rewrote the Rules.

2. Retrospective Reconstruction. The Taxing Master has a discretionary power under Order 99 r.25 to call for further documents or estimates, including reconstructed timesheets. Such a direction should be case-specific, mindful of expedition and evidential reliability; it is not mandatory in all taxations.

3. Two-Solicitor Issue. While The Taxing Master may disallow a second senior solicitor, the Supreme Court found the outright disallowance here potentially unjust given the case’s gravity. The matter should therefore be reconsidered on remittal.

4. Economic Conditions. Market circumstances can influence the value of work done, but only through evidence showing how fees actually moved in the relevant professional market. Blanket percentage reductions or annual economist reports exceed the Taxing Master’s remit.

5. Outcome on Methodology. The proper model is that sketched in “Case A”: identify the work done, consider all statutory factors (including, but not dominated by, time), and assess value without pricing every minute.

Holding and Implications

ORDER: The Supreme Court allowed the Defendant’s appeal, set aside the Court of Appeal’s order, and remitted the taxation to The Taxing Master for limited reassessment.

Immediate effect on the parties: Only the 2011 portion of the instructions fee – particularly the court-attendance element and the possible cost of a second senior solicitor – will be re-measured. The Plaintiff may submit a reconstructed time estimate for 2011; The Taxing Master will decide whether similar estimates are needed for earlier years.

Wider implications: The judgment re-establishes that “time spent” is one among several statutory criteria; it discourages compulsory hourly accounting, clarifies the discretionary scope for retrospective estimates, and cautions against across-the-board economic discounts. No new precedent on substantive liability was created, but significant guidance has been given for future cost taxations.