Western Circuit/ County of Roscommon 1989
THE HIGH COURT 
(CIRCUIT APPEAL)
BETWEEN
MICHAEL DONNELLAN PRACTISING UNDER THE STYLE OF
OLIVER FREANEY & COMPANY
PLAINTIFF
V.

JAMES O'BRIEN
DEFENDANT
Judgment of Mr. Justice Barron delivered the 20th day of November 1989.

On the 17th March 1982 the Defendant who is a United States citizen was involved in a road traffic accident in Co. Galway. He commenced proceedings to recover damages for the personal injuries sustained by him in that accident. At all material times those proceedings involved solely an assessment of the amount of damages to be paid to him. In his Statement of Claim the Defendant gave his address as Castlerea, Co. Roscommon and his occupation as underground construction worker, basketball coach and farmer.

As he claimed a substantial sum for loss of earnings the Defendant in that action sought particulars. The particulars furnished indicated that the Defendant spent three months of the year in this country and the remaining nine months in the United States. His claim for loss of earnings in this country was based on his inability by reason of his injuries to achieve the progress required by an ACOT Development Plan which had been prepared in the year 1978 in respect of his farm. In fact this farm belonged to his wife who worked it as a dairy farm together with the help of her children.

The date for the assessment of the damages was fixed for Friday November 21st 1986 in the High Court in Dublin. For some time the Defendant's Solicitor had been advising him to obtain the services of an Accountant in order to be able properly to present his claim for loss of farm earnings. Ultimately on the 14th of October 1986 the Defendant consulted the Plaintiff at his office in Mullingar. He gave him Bank Statements, milk statements, his wife's tax returns relating solely to the farm and the ACOT Development Plan. The Plaintiff contacted the Defendant's Solicitor by 'phone for further information and by letter dated the 15th October 1986 this Solicitor wrote to the Plaintiff referring to this telephone conversation and asked the Plaintiff to prepare a report on the basis of what it would have cost the Defendant to attain the services of another employee or employees to do the work that the Defendant used to do on the farm and to project this costing on an actuarial basis to estimate his continuing loss of income.

There was a considerable dispute in the course of the hearing before me as to the nature of the Plaintiff's instructions, but I am satisfied that not only was he required to prepare a report on the basis set out in this latter letter, but also on the basis of loss sustained by reason of the failure to achieve on the farm the goals set out on the ACOT Report. It appears that the Defendant did express concern about the cost of these reports because by letter dated the 4th of November 1986 after thanking the Plaintiff for seeing him during his dinner hour he writes inter alia:
"Please dismiss my concern about cost and obtain whatever information you need. I will be searching for old record books at home as you suggested."
Apart from this lunchtime conversation the evidence shows that there was no other contact between the Plaintiff and either the Defendant or his Solicitor until Wednesday the 19th of November.

On the 19th November the Plaintiff together with his Office Manager Mr. Keegan visited both the Defendant's farm and the ACOT offices. They then completed their
report. This comprised the preparation of seven years' farm accounts together with projected farm accounts for the four years since the accident. Figures were also produced setting out alternative bases for claiming loss. First there was a comparison between projected and actual income. Secondly there was the cost of the hiring of two full-time labourers to run the farm. There were then two further alternatives based upon renting the farm or selling it and investing the proceeds.

The following day the Plaintiff and Mr. Keegan attended a consultation with Counsel at the Four Courts. However, since the reports had only just reached Counsel they were asked to return early the following morning to enable Counsel to study them before discussing their contents with the Plaintiff and Mr. Keegan. On Friday the 21st the Plaintiff and Mr. Keegan attended the Court hearing which continued during Court hours. The hearing was adjourned until Monday the 24th. The Plaintiff attended but was not required as the case settled on that day.

The following day the 25th November the Plaintiff furnished his account for professional services rendered. It was as follows:
"For the case of James O'Brien v. Laurence Kiernan.
Preparation of Farm Accounts for the years ended 31st December 1979, 31st December 1980, 31st December 1981, 31st December 1982, 31st December 1983, 31st December 1984 and 31st December 1985.

All auditing and accounting work carried out with regard to the above seven years.

Presentation of the final set of typed accounts to the High Court for examination.

Preparation of proposed farm accounts profits for ended 31st March 1983, 31st March 1984, 31st March 1985 and 31st March 1986.

Presentation of copies of the proposed farm accounts to the High Court for examination.

Attendance at the Law Library for consultation with Senior Counsels.

Attending at the High Court on Friday the 21st November and Monday the 24th November.

Being available for examination and cross examination at the High Court on the above two days. 

Meeting with Mr. James O'Brien on numerous occassions and calling to see his farm and discussions with regard to the accounts and proposals prepared for his farm. 

Seven years' farm accounts prepared	£2,800 
Four years' farm projections prepared £1,600 
Court attendance	£1,130
Consultations with Barristers	£ 400
Expenses incurred	£ 500
Total £6,430
The hourly breakdown is as follows: 
Michael Donnellan 70 hours @ £55 per hour. 
Donal Keegan	50 hours @ £25 per hour.
Marcella Doyle	30 hours @ £15 per hour.
Harry Barry	     19 hours @ £20 per hour.
Total hours charged	169 hours.
Total charge for time	£5,930.
Expenses incurred with regard to the case	£500. Final fee for all work carried out with regard
to this case	£6,430. Add VAT at 10%	£643
Total fee due	£7,073."

The dispute arose as to the amount of the bill. The sum of £2,600 and VAT was paid on account of this bill as part of the costs in the Defendant's action. The Plaintiff was not prepared to accept this sum and commenced the present proceedings.

For the purposes of these proceedings it is not necessary to consider what part of the present claim should or should not have been allowed as part of the costs. The
Plaintiff is entitled in contract as against the Defendant for whatever sum is reasonable for the work which he was instructed to do.

It seems clear that the Plaintiff intended to charge upon the basis of a rate per item of work. Although the account sought to justify this basic charge by reference to
hours worked, this latter was not intended to be the basis of charge. It is clear from the diaries furnished in the course of the evidence and from the evidence itself that, if this had been the basis, the claim would have been larger than it was. This is also made clear by a letter dated the 15th July 1987 where it is said that the usual charge made by the Plaintiff's firm for farm accounts is £400 and VAT for each year of accounts. As regards hourly rates another Chartered Accountant gave evidence in support of the Plaintiff largely in support of the fees being claimed. However he was unaware of the work involved not apparently having been asked to express his opinion as to how the Plaintiff should have carried out his instructions.

Although the Defendant's letter dated the 4th November 1986 gave the Plaintiff an opportunity to indicate that his normal charge was increased by reason of his instructions the Plaintiff did not at any time suggest that his fee should be increased in any way because he was asked to do additional work. The reality seems to be that the Plaintiff thought that his bill would be met in full by the Insurance Company acting for the Defendant in the Personal Injuries Action. He apparently told the Defendant this, and an averment to this effect contained in the letter from the Defendant to the Plaintiff dated the 10th of December 1986 has not been controverted.

The first item on the Plaintiff's bill is for preparing seven years' farm accounts. The Defendant says that the Plaintiff was not asked to do this and that he was given the accounts which had been accepted by the Revenue. The Plaintiff has made the case that he was entitled to exercise his professional judgment as to the work he did. It was on this basis that he justified redoing the seven years' accounts which were given to him as part of his instructions. I am unable to accept this contention. He was entitled to exercise his professional judgment in the manner in which he approached his instructions, but this would not justify him in doing something he was not asked to do.

No doubt he needed to familiarize himself with the accounts. There could be no ground though for rewriting accounts especially for the period before the accident. The most he might have done would have been to show that the original accounts understated the true position as an argument to support his projections.

The preparation of these accounts was unnecessary and in my view were only prepared because the Plaintiff believed that they would be paid for by the Insurance Company. The Defendant cross-examined the Plaintiff inter alia concerning silly mistakes which occurred in the presentation of the accounts. These he established. However the projections were well prepared. The mistakes resulted from the speed with which the work was done. Although instructed on the 14th of October the work so far as the Plaintiff and his main assistant were concerned did not commence until the 13th November and the accounts were made final on the 19th for the consultation on the 20th. This was not the three weeks continuous involvement alleged in the letter from the Plaintiff's firm dated the 30th January 1987. Mr. Keegan's diary shows no involvement at all before the 13th November and the Plaintiff's diary shows involvement after he received his instructions on the 14th on the 15th and 23rd October and not again until the 13th November. Accordingly I am not prepared to allow this item. The Plaintiff might possibly have been instructed later concerning the accounts where the Defendant's appeal had been dismissed but in any event it is common case that the work on such accounts was not done pursuant to any instructions.

The next item on the Plaintiff's bill is for preparing four years' projections. Accepting the Plaintiff's own basis of charge it seems to me that the work involved in preparing the projections would not have been as extensive as the work involved in preparing annual accounts. On this basis I am prepared to allow the sum of £1,000 for this item. Included in that figure would have been the cost of familiarising himself with the old accounts and the cost of a visit to the farm.

There remains the question of the fees to be allowed for attending consultation and Court and the matter of expenses.

The Plaintiff has sought various expenses. It seems to me that he should be entitled to his traveling expenses on the three days that he had to come to the Four Courts. He is entitled to 50p a mile which comes to a sum of £55 on each occasion amounting in all to £165. I think that so far as meals are concerned the provision of meals for an assistant is something which is a matter between the assistant and his firm and should be written in to the overall fee charged for an assistant. So far as the Plaintiff's own meals were concerned I think he would have been entitled to lunch on the Friday of the Court hearing. This is obviously a very small matter and I will allow a sum of £10. I will allow the £70 charged for the travel to the farm on the Wednesday. I can see no justification for charging to the Defendant the cost of telephone calls made to the office to keep in touch while he was at the Four Courts. I would allow the sum of £65 for the miscellaneous expenses. The allowed expenses accordingly come to £310.
I do not propose to allow anything for the attendance of Mr. Keegan at the Four Courts. The Plaintiff was accompanied by Mr. Keegan only because he believed that the allowed costs would include Mr. Keegan's attendance. He even consulted an independent Solicitor to assure himself that this would be so. There is no general rule that a professional witness should be accompanied at consultations in Court by an assistant. When the witness gives evidence he has to rely upon his own knowledge without any opportunity to consult his assistant.

As regard Court attendance I feel that a consultation would have taken approximately an hour and that allowing for time taken to and from the consultation that a sum
of £200 would not be unreasonable. So far as the Court hearing was concerned that would have been from 11 a.m. to 4 p.m. The fact that the Plaintiff was required to attend earlier in the morning was because he was late in getting his accounts to Counsel for the consultation. I don't think the Defendant can be billed with that additional time required by the Plaintiff in Dublin. However, allowing for a full day in Dublin it seems to me that he could not really have done much before he went out and very little after he got back and accordingly I will allow a sum of £350 for that day. I am not told at what time of the day the case was settled on the Monday but I think I will allow a further £200 for that. That comes to a total of £750 for attendances at Court and consultations. The total which I would allow is accordingly £2,060 and VAT at 10% as claimed.

This is less than the sum paid by the Defendant's Insurance Company in the Personal Injuries Action towards these fees. This does not surprise me since I feel sure that the amount paid would have included an element of overpayment to avoid taxation. Further the view of the Defendant's Solicitor in those proceedings that the bill had "far exceeded my wildest expectations" is another indicator. Nevertheless that sum has been accepted by the Defendant on behalf of the Plaintiff's fees. Accordingly the Defendant is liable to the Plaintiff to hand over the entire of the amount notwithstanding the figure at which I have arrived.