D. v Minister for Health and Children & Anor

Factual and Procedural Background

This opinion concerns an appeal by the respondents against the decision of Taxing Master Flynn dated 2nd July 2005 regarding the Solicitors General Instructions Fee of €51,000 allowed on taxation of a Bill of Costs. The appeal was brought under Order 99, rule 38(3) of the Rules of the Superior Courts and section 27(3) of the Courts and Court Officers Act 1995. The Taxing Master had increased the General Instructions Fee from €36,000 to €51,000 following an objection by the solicitors for the applicant.

The underlying case involved an appeal to the High Court from a decision of the non-statutory Hepatitis C Compensation Tribunal. The applicant’s medical condition had deteriorated significantly after the Tribunal’s award. The solicitors for the applicant undertook extensive work including obtaining and reviewing medical records, commissioning medical and actuarial reports, instructing counsel, and preparing for the High Court appeal hearing. The appeal was heard before a High Court judge who described the case as unusual and complicated due to the applicant’s overlapping medical conditions related to Hepatitis C.

The Taxing Master considered the complexity of the case, the extensive documentation, the number of witnesses, and the detailed medical and financial investigations undertaken by the solicitors. The appeal hearing itself lasted less than a day, with an ex tempore judgment delivered immediately. The Compensation Tribunal’s award was substantially increased on appeal, including significant awards for general damages and loss of earnings.

Legal Issues Presented

1. Whether the Taxing Master erred in the assessment of the Solicitors General Instructions Fee by failing to provide an itemised and reasoned analysis of the work done.
2. Whether the Taxing Master applied appropriate comparators in assessing the General Instructions Fee, specifically whether fees allowed in Garda Sochna (Compensation) Acts cases were suitable comparators for Hepatitis C Compensation Tribunal appeals.
3. Whether the amount of the deduction applied by the Taxing Master to reflect commonality and repetition of work was adequate or excessive.

Arguments of the Parties

Respondents' Arguments

• The Taxing Master failed to carry out an itemised and specific assessment of the various components of the work claimed as justifying the General Instructions Fee of €60,000.
• The Taxing Master did not adequately explain why a 15% deduction was appropriate, contending that a reduction of 50% or more should have been applied.
• The Taxing Master erred in using fees allowed in Garda Sochna Compensation cases as comparators rather than fees from Hepatitis C Compensation Tribunal appeals or civil appeals from the Circuit Court to the High Court, which were more appropriate.

Solicitors for the Applicant's Arguments

• The solicitors contended that there was no residue of knowledge carried over from the previous solicitors who acted before the non-statutory Compensation Tribunal, as they were newly instructed.
• The complexity and unusual nature of the applicant’s medical conditions and financial circumstances justified a higher General Instructions Fee.
• The substantial increase in the compensation awarded on appeal warranted a higher fee compared to the initial award.
• The Garda Sochna Compensation cases were the most appropriate comparators due to procedural similarities with the Hepatitis C appeals.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court found that the Taxing Master erred in principle by failing to provide an itemised, specific, and reasoned analysis of the work done by the solicitors to justify the General Instructions Fee. The Taxing Master relied on broad statements and general conclusions without connecting these to the individual items of work or explaining the necessity and reasonableness of the fee allowed.

The Court emphasized that a proper assessment requires the Taxing Master to identify the work done, by whom, the special skill (if any) required, the time reasonably devoted, the degree of responsibility borne, and the extent to which the work was necessary for justice. Without such analysis, the exercise of discretion under section 27 of the Courts and Court Officers Act 1995 is invalid.

The Court further held that the Taxing Master erred in using fees allowed in Garda Sochna Compensation cases as comparators, as these cases differ significantly in medical, financial, and procedural complexity from Hepatitis C Compensation Tribunal appeals. Instead, fees allowed or agreed in similar Hepatitis C appeals, particularly involving Anti-D immunoglobulin infection cases, were the more appropriate comparators.

The Court accepted that some reduction in the fee was appropriate to reflect commonality and repetition of work across similar cases but found the 15% reduction applied by the Taxing Master to be inadequately reasoned and possibly insufficient. The Court suggested a starting point of up to 50% reduction, with a sliding scale based on the degree of repetition and similarity.

Because the Taxing Master’s report lacked sufficient detail and analysis, the Court was unable to form an independent view on the proper fee amount and therefore remitted the matter for reassessment by a different Taxing Master to ensure fairness and compliance with statutory requirements.

Holding and Implications

The Court ALLOWED THE APPEAL IN PART AND REMITTED THE MATTER to be reassessed by a different Taxing Master of the High Court.

The direct effect is that the General Instructions Fee awarded to the solicitors is to be reconsidered with a proper, detailed, and reasoned analysis of the work done, the special skill and responsibility involved, and the use of appropriate comparators from similar Hepatitis C appeal cases. No new precedent was established; rather, the Court reinforced existing principles requiring clear reasoning and proper comparators in taxation of costs.