THE HIGH COURT
		1989 No.  14997p
BETWEEN
GIOVANNI GASPARI
		PLAINTIFF
AND
IARNROD EIREANN - IRISH RAIL
		FIRST NAMED DEFENDANT
AND
MICHAEL J DISKIN
		SECOND NAMED DEFENDANT
AND
PATRICK DISKIN 
		THIRD NAMED DEFENDANT

Judgment of Mr Justice Kinlen delivered on the 30th day of July, 1996.

	The Plaintiff was a passenger on a train owned and run by Iarnrod Eireann.  It was travelling between Dublin and Knock in the County of Mayo.  Cattle were travelling across the railway track.  The land on both sides of the track was owned by the second named Defendant, Michael J. Diskin.  The cattle were owned by the third named Defendant, Patrick Diskin.  The train and the cattle were in collision.  The Plaintiff instituted proceedings against the first named Defendant only by a plenary summons dated the 7th November, 1989.  A Statement of Claim between the same parties was delivered on the 18th of December, 1989.  The Defence, delivered on the 15th June, 1990 was the normal traverse with allegations against Michael Diskin and Patrick Diskin.  Notice of trial was served on the 26th July, 1990.  There were a number of people injured in the collision between the train and the cattle.  It looked as if the case in which Veronica McGovern was the Plaintiff would be first to hearing as she had got  discovery.  The Plaintiff in the present case had brought a motion for discovery on the 
25th June, 1992 and got a limited order of discovery on that date which order was perfected on the 14th of August, 1992.
	On the 23rd September, 1992 application was made by Iarnrod Eireann to join the two Diskins and for directions.  On that date the Diskins were joined as co-Defendants.  The amended Statement of Claim was delivered on the 3rd November, 1992 and an Affidavit of Discovery was sworn on the 24th November, 1992.  It was agreed to give the same discovery as had already been given in the case of Veronica McGovern.  There were the usual Notice for Particulars and replies and Notices claiming Indemnity and Contributions.  The second and third named Defendants initially entered a joint defence, dated the 
4th December, 1992.  However, on the 12th January, 1993, there were separate Notices served on behalf of each of the Diskins to claim Indemnity and Contribution.  They each filed separate answers to a Notice for Particulars.  The Action came before Johnson J. on the 
12th January, 1993, and was at hearing for 12 days concluding on the 29th January, 1993.  
	The second and third named Defendants were represented separately.  
	The Judgment was reserved.  It was delivered on the 26th February, 1993.  The Court found the first and third named Defendants negligent and proportioned liability 30% on the Railway Company and 70% on Patrick Diskin and awarded damages in the sum of £16,000.  The case was adjourned to the 23rd April, 1993 to draw up the Order.  On that date the Court ordered that the Plaintiff do recover from the first and third named Defendants the sum of £16,000 together with the costs when taxed and such costs to include the costs of this stay.  It was further ordered:-

	"that the Plaintiff's claim against the second named defendant be dismissed and that the Plaintiff do pay to the second Defendant the cost of these proceedings including the cost of this stay when taxed.

	And it was further ordered that the Plaintiff do recover against the first Defendant such costs as he is liable to pay and does pay to the second Defendant on foot hereof.

	And the Court be informed by Counsel for the First Defendant that the sum of £16,000 has been pledged to the Plaintiff.

	It is ordered that execution on foot of the said Judgment (as to costs only) be stayed for a period of 21 days from the date of perfection hereof and in the event of the first Defendant serving Notice of Appeal within that period and duly entering same that execution be further stayed until the final determination of such appeal - the Defendants to pay to the Plaintiff interest on such costs as shall be payable on foot hereof such interest to date from the date hereof.”

	The matter again came before Johnston J. on the 25th June, 1993 when the Court ordered that:-
	"the said Order dated the 23rd April, 1993 be amended as follows:  that the costs awarded to the second Defendant be limited to such costs as are attributed directly to separate representation.” 

	The first named Defendant appealed to the Supreme Court the whole of the Judgment of the 26th February, 1993 and the Order of the 23rd April, 1993 as amended by the Order of the 25th June, 1993.  The matter came before the Supreme Court.  The first named Defendant appealed for an Order setting the High Court Judgment aside and directing a new trial and the third named Defendant appealed against as much of the High Court Order as made him liable for damages to the extent of 70%.  The matter was argued before the Supreme Court on the 16th, 17th and 18th November, 1993 and Judgment was given on the 15th December, 1993.  The Supreme Court heard Counsel for the respective Appellants and Counsel for the Plaintiff and not requiring to hear submissions from Counsel for the second named Defendant, ordered that the appeals be dismissed and ordered that the said Judgment and Order of the High Court be varied by adding thereto the following provisions:-

	“(1)	that the first named Defendant do recover against the third named Defendant's contribution amounting to 70% of the damages and costs which he is liable to pay and does pay to the Plaintiff in this Action.

	(2)	that the third named Defendant do recover from the first named Defendant contribution amounting to 30% of the damages and costs which he is liable to pay and does pay to the Plaintiff in this Action and that as so varied the said Judgment and the Order be affirmed and it is ordered that the Plaintiff do recover from the first and third named Defendants the cost of the said Appeals when taxed and ascertained and that the second named Defendant do recover from the first named Defendant the costs of that Defendant's appeal when taxed and ascertained".

	The Court also gave liberty to apply in the High Court and if necessary to the Supreme Court in regard to any question arising in relation to the second named Defendant's costs of the proceedings in the High Court.
	The matter came before Johnson J. again on the 20th December, 1993.  The Court deleted from it's Order of the 25th June, 1993 "where such costs as are attributed directly to separate representations" by the substitution therefore of the words "such costs as are attributable solely to the separate representation of Michael Diskin".
	The matter came before this Court by way of three motions to review taxation of costs by Taxing Master Flynn.  There are two motions brought at the behest of Irish Rail who are the first named Defendants in the principal action.   These motions are directed against the Plaintiff and against the second named Defendant, Michael J. Diskin and the Plaintiff brought a Motion against Iarnrod Eireann in relation to one issue only, namely, the Solicitors Instructions Fee for the Plaintiff.
	The learned Taxing Master proceeded to tax and hear objections in this matter.  The objections were heard on the 27th and 30th June, 1995.  The Taxing Master issued his report in July of 1995. 
	  The McGovern case was first on the list.  It was set down for trial in Dundalk but since it would take at least two weeks, it was transferred to Dublin sometime around the end of 1992.  Apparently, the Solicitors involved for the various Plaintiffs did then get behind the present case as the test case.  It was the contention of Irish Rail that all the ground work that was necessary for the running of the test case was done in the McGovern case which was ready to go on until it was adjourned to Dublin and the Gaspari case then came ahead of it in the list.
The Plaintiff's costs were briefly as follows:-
Senior Counsel £20,000.  Taxation was reduced to £18,900 but on objection was restored to £20,000 and £3,000 for refresher was allowed on taxation and again on objection.  Junior Counsel fees would of course be the appropriate two-thirds of that being allowed to Senior Counsel.  The Plaintiff's Solicitors' instructions fee claimed at £150,000 reduced on taxation to £90,000 and maintained on objection at £90,000.  The first named Defendant says that Senior Counsel's fee should be £7,857, refreshers of £1,575, the Solicitors Instruction Fee of £44,250.  The first named Defendant  was aware of claims up to 191 "in the pipe line".  There were undoubtedly very serious implications for the Railroad Company in relation to accommodation crossings and the law in relation to them.  They agreed a special fee with their Senior Counsel at  £25,000 and a daily refresher of £2,500.  The second Defendant's costs resulted in a brief  fee claimed at £26,250 for Senior Counsel reduced on taxation to £18,900 and on objection mostly restored to £25,000.  The Solicitor's Instruction Fee was £118,500 reduced on taxation to £75,000 and on objection to £70,000.  Undoubtedly this case had decided the issue in all the other cases even though it had not been intended initially to be the test case.  The Rail Company strongly made the case of Mr. Gaspari in his case not being a test case prior to the Autumn of 1992.  It was the McGovern case that they claimed was the test case.  On the McGovern case being adjourned from Dundalk to Dublin thereby delaying the starting time for that trial undoubtedly the present Plaintiff was suddenly the front runner.              .
	Mr. Hanna, S.C. who led for Iarnrod Eireann very ably argued primarily that the Taxing Master ignored comparisons given by Mr. Fitzpatrick who was the Costs Drawer for the first named Defendant as not being comparable.  He argued that the Taxing Master was wrong to disregard them and even if they were to be discounted, they should not be lightly disregarded and "should be afforded more salt than the Master gave to them".  He relied too much on Mr. Behan and Mr. Lowe the other Costs Drawers involved.  He also argued that it became a test case at a very late stage and that much of the work had already been done and had a wider order of discovery than in the Gaspari case.  He argued that the burden from an intellectual point of view was shared by at least another firm of Solicitors and that the Plaintiff  had a Barrister employed in relation to discovery and his fees had been discharged in full.  The documents were in three or four separate locations.  One in Athlone and the others in Dublin.  Mr. Ferry says his office was taken over with this case with people photocopying over long periods of time.  By merely dismissing Mr. Fitzpatrick's list of comparisons, the Taxing Master was basically unfair.  It was then argued that the Taxing Master enforcing the Order of the 23rd April, 1993 where it is directed that : -
	"it is ordered that the Plaintiff's claim against the second Defendant be dismissed and that the Plaintiff do pay to the second Defendant the costs of these proceedings (including the costs of this stay) when taxed".

	Mr. Hanna says that the Taxing Master did not say he was enforcing the Order of the 23rd April, 1993 but what he has done is treat that Order as it stood, unaltered and unamended.  The Order was amended.  The costs awarded to the second Defendant were to be limited only to what was "attributable directly to separate representation".  This correction was not made by the trial Judge but was made in the office.  The matter came again before 
Mr. Justice Johnson on the 20th December, 1993.  He cleared up any problem, real or imaginary, about the Order made in the office apparently on the 25th June, 1993.  He provides an amendment of the Order by deleting  therefrom "such costs as are attributed directly to separate representations" and by the substitution therefore by the words “such costs as are attributable solely to the separate representations of Michael Diskin".   Mr. Hanna argues that Michael Diskin was wrongly given full costs as if he were an individual Defendant before the Court in that capacity.  
	In his ruling on objections on the bill presented by the second named Defendant, the first named Defendant, the learned Taxing Master says at page 10:-

	"it now lies with me to interpret the Order of Johnson J. made the 20th December 1993 which permits "such costs as are attributable solely to the separate representation of Michael Diskin".  It appears to me what the learned Judge was concerned with was that there should be no duality as may have stemmed from the one firm of Solicitors acting for the second and the third named Defendants.  From an interpretation of the evidence the over-riding concern and which I agree with was that there should be no duplication of costs.  The letter of Mr. Henry Murphy, B.L. of Counsel for the first named Defendant does not in any meaningful way disagree with the contents of 
	Mr. Brian E. Spierin, B.L.

	"In this Judgment delivered the 26th February, 1993 the learned Johnson J. in the instant case at page 17 said:-

	"under these circumstance in my view the second named Defendant is dismissed from the case as the degree of authority or control which he had, if any, was not sufficient to bring him within the provisions of the above cited case.  Surely this dismissal of the allegations against the second named Defendant puts him in the position of a successful Defendant and as a consequence he is entitled to all such costs, charges and expenses as are necessary or proper for the attainment of Justice and for enforcing and defending his rights.  He is in the same position as a successful Plaintiff."

	It is Mr. Hanna's argument that although the Order of the 20th December, 1993 manifestly orders the Taxing Master, as to what is to be done.  He is not following the Order but he is basing his views on the Judgment of the Court and is interpreting the Judgment treating the first Order of the 23rd of April, 1993 as the relevant one.  Mr. Hanna then quotes the Taxing Master at page 18 of OP.CIT:-

	"Accordingly, I propose taking all the circumstances of the case into consideration, the degree of responsibility placed on the Solicitor for the trusts, the submissions of the various parties, the degree, if any, of the Solicitor for the costs taking joint instructions of the second and third named Defendants, I consider a just and reasonable fee to be £70,000 and I disallow both the first named Defendant's and the second named Defendant's objections".

	Mr. Hanna suggests that these were to say that he found no distinction or at least has indicated that he had found no distinction between the second and third named Defendants.  It also transpired that there was a document before the Taxing Master suggesting that Counsel for the second and third named Defendants split the fees fifty/fifty, this was not an Order for costs.  This was presumably on the old adage "no foal, no fee" and the idea though much condemned has led to ambulance chasing.  However, in practice,                 providing a free legal aid service, most Counsels do at least some of their workload on such a principle, and actually do not get paid at all.  They hope to get paid but they realise that if they do not succeed, their client will not pay their fees.  It is to the credit of the Bar that they operate this system for so long without much public appreciation. 
	In the view of this Court the Master was manifestly dealing with the last Order and his putting it in context having regard to what was said by Johnson J. during trial and at making of Order and as reported in both barristers' letters.
	It appears that there was a meeting at which Mr. Fitzgerald, S.C. directed a certain course.  This seems to have been on the 16th November, 1992 although there is some suggestion that it might have been in October.  Mr. Hanna suggested that really there was no great involvement by the Solicitors until a few days before the trial, in relation to separate representation but I think it would be proper to take it from October/November 1992.  Mr. Hanna argued that since the Plaintiff got £90,000 as instructions fee for the Plaintiff, £70,000 for the second named Defendant who did not have nearly as much an involvement, is too high.  The final item was the fee due to Doctor Bielenberg.  He had sworn that he was retained in this case by Patrick Diskin, the owner of the cattle.  Dr. Bielenberg subsequently stated he was employed by both Diskins and had in fact had consultations with their respective Senior Counsel.  The Taxing Master accepted that and allowed the moiety of  50% of Dr. Bielenberg's fees.  Mr. Hanna argues that the involvement as far as the second named Defendant was significantly less than the nature and level of his involvement on behalf of the third named Defendant who was the unsuccessful Defendant.  Originally, he swore he was retained by only one Diskin but he explained that subsequently which is, I think, reasonable.
	Mr. Hanratty, S.C. addressed the Court on behalf of the Plaintiff.  Originally his case was an ordinary one in which he sued the carrier who was bringing him as a pilgrim to Knock.  The relevant period would be from October 1989 when he instructed his Solicitors to October of 1992 when his case became a test case.  It then became a much more important case than it had been previously.  The object was to recover £16,000 damages and he had to go to the High Court or the Supreme Court for his entitlements.  To achieve it, he had found from the very outset an appalling gauntlet because in effect he had to satisfy the Court by discharging the onus of proof which was upon him.  He was contending how the Railway system, particularly relating to those crossings, should be run and was capable of being run.   The manner in which the Defendant Railway Company ran the Railway system in relation to crossings was the wrong way.  The onus of proof to recover his admittedly modest damages was appalling and the potential costs involved in discharging that onus was utterly disproportionate to the damages in issue.  When it became apparent that the Gaspari case was now going to be the first case for hearing, it put a considerable onus on the lawyers involved.  They brought an application to join the two Diskins as Defendants.  The entire case had to be repleaded.  A new Statement of Claim was delivered against all the Defendants including the new joint Defendants.  The defences were delivered by the newly joined Defendants and in it's amended defence by Iarnrod Eireann.  Few of these defences' books had to done again.  Mr. Ferry had assistance only from people who had volunteered and who had an interest in other cases.  He had taken into consideration over 100,000 documents.  He sorted 20,000 as relevant documents.  He then went through a further reduction of 20,000 to 2,000.  They then had to put them into some kind of comprehensible format and be indexed.  Mr. Hanratty stressed that Mr. Lowe's evidence and Mr. Ferry's evidence was unchallenged before the Taxing Master.  He submitted that one must look to see did the Taxing Master apply the correct legal principles and were they correctly applied having regard to the evidence.  If both these conditions are fulfilled, the High Court will not and should not interfere.  Mr. Hanratty contests that this was a test case.  Mr. Hanna disputed that fact and wanted to produce fresh evidence in an attempt to show that the McGovern case was the test case all along.  This is the kernel of the case.  It is a test case on which 191 claims depend and then that is certainly a matter to exercise the mind of the Taxing Master who is dealing not merely with the instructions fees but also with Counsels' fees.  He argued that Mr. Fitzpatrick's calculations of the appropriate fees premised on the proposition that this was not a test case.  This was a case which ran for twelve days in the High Court with an award of £16,000.  It was the first of 191 potential claims.  There were also claims  by the Diskins against Iarnrod Eireann presumably for damage to their cattle and by Iarnrod Eireann against the Diskins presumably for damage to the train.  Mr. Hanratty insisted that the Taxing Master had paid attention to Mr. Fitzpatrick and refers to page 17 of his report.  Mr. Hanratty states that the hypothetical terminology was introduced by Smith -v- Tunney 1993 1 IR 451 but that in fact the rule laid down in  Dunne -v- O'Neill  1974 IR 180 is utterly and completely intact.  In this he is inaccurate as "hypothetical" was used by Gannon J. in Dunne -v- O'Neill.   The work done by the Plaintiff's Solicitor occupies nearly 100 pages.  It is obvious that the Plaintiff's Solicitor had an enormous task in what was an extraordinary case.  Mr. Hanratty stressed that they have qualified under every single heading in Order 99 Rule 22 of the Rules of the Superior Courts.
	Mr. Hanratty had brought a Motion himself on the grounds that the instruction fee of £90,000 is inadequate having regard to the work which was done, the scale of the work which was done and the time constraints within which it had to be done.  Mr. Lowe had suggested a figure of £150,000 and Mr. Fitzpatrick, on the grounds that it was not a test case, was £44,000.  He queried the findings of the Taxing Master on this point on two grounds.  Firstly, Mr. Fitzpatrick's testament comes on the basis that it was not a test case and secondly, relying on the Crotty -v- Ireland 1990 1 ILRM 617 case and the Brian Clarke -v- Noel Hearty case that the Defendant's fees on taxation will be roughly one-third less than those of the Plaintiff.  Mainly because the lawyers appearing for the Defendant will normally be on a panel and can expect to get a great deal of work from that source.  They argued that if we look at the difference in the scale of work which was done by the Plaintiff's Solicitor compared to the second named Defendant's Solicitor, it immediately becomes apparent that there is a lack of proportionality.  It becomes apparent even if you consider only the question of discovery, that item alone will account for more than the difference as between the two Solicitors which is only £20,000.  The Solicitors for the second named Defendant did not have to plead the case twice.  They did not have to comply with Counsel's advices on proofs twice.  They did not have to deal with the extensive difficulties which were involved in the case.  They did not have the twenty-eight applications referred to in the summary.  Most particularly, they were not involved in a case between October of 1989 and October of 1992.  They only came into the case in October 1992 and yet the difference between them is only £20,000.  Mr. Hanratty pointed out that the Taxing Master at page 19 of his report states:-

	"Accordingly, between the period when the Solicitor for the costs obtained instructions, namely, October 1989 and the 23rd September, 1993 the proceedings were against the first named Defendant only and as the Plaintiff was a paying passenger on the train he could not be said to be negligent himself and the work involved was akin to that which would have been involved in a personal injury action of assessment only."

	At paragraph 5 of the defence filed on behalf of the Iarnrod Eireann, it is pleaded:-
	"If it is denied the Plaintiff did suffer the alleged or any personal injury, loss or damage the same was caused solely or are contributed to by the negligence, breach of duty, breach of statutory duty and nuisance of Michael Diskin and/or Patrick Diskin and their respective servants and agents in bringing cattle onto the said railway and into collision with the said train."

	In the opinion of this Court, the Taxing Master having regard to that plea and what actually happened at the subsequent hearing was wrong to treat it as akin to the work which would have been involved in a personal injury action of assessment only.  The Taxing Master was meticulously careful in preparing his report as we will see later.  However, he certainly seems to have made an error at this point.  At the end of the case, the first named Defendant sought to raise the constitutionality of the Civil Liability Act.  He was allowed to do so by the learned Trial Judge but this decision was reversed on appeal.  This was also a matter which the Taxing Master should have considered when he was dealing with this instruction fee.  It was also clear that the Taxing Master on three occasions thought that Mr. Fitzpatrick had suggested a fee of £25,750 but Mr. Hanratty very fairly points out that in fact the Taxing Master was in error on this point and that nowhere did Mr. Fitzpatrick give such a figure.  Indeed, Mr. Fitzpatrick seemed to come around slowly to the view that it might be a test case.  Mr. Fitzpatrick's lowest figure was £44,000 but it is possible that the Taxing Master, having mentioned a figure of £25,750 on three occasions, got that figure in his mind when he reached £90,000.
	Mr. Gordon on behalf of the third named Defendant does not seek any alteration in the bill.  Mr. Gordon points out that one must look at the circumstances of all the parties and that it was cynical of Iarnrod Eireann to say that they were exposed to a claim of about £4,000,000 arising out of this crash.   They would continue in business if they had to discharge that amount of money.  Mr. Michael Diskin's circumstances according to Mr. Hanna was not on a par with the railroads.  Mr. Gordon contended that this was an absolute fallacy.  If the railroad company lost, the tax payers would have to pay for it.  That is the reality.  If the Plaintiff lost his case, ultimately he could survive in life without the £16,000 he got.  If Mr. Michael Diskin was held 1% responsible for what happened.  Everything he had in life was gone.  He and his son had been joined in all the cases as Defendants.  He was facing over 100 writs.  He was fortunate in the best tradition of the legal profession to find a Solicitor and Barrister who would work for him on a no-foal no-fee basis, who gave him great service.  This was certainly a test case.  It may have become a test case late in the day but it was a test case.  Mr. Gaspari was only concerned with this one case but all the Defendants were concerned in all the other cases.  Even though the same firm acted for the two Defendants, a different Solicitor from the firm attended on behalf of each Defendant. The Taxing Master looked at the figures and came to the conclusion that the proper thing to do was to allow Messrs. Walsh Warren half the fees that they would normally be entitled to under Appendix W.  The pleadings were common to both Defendants up to a certain point.  Mr. Michael Diskin could not have avoided having any dealings at all.
	Mr. Hanna in his closing address pointed out that Irish Rail did not know it was a test case and in fact when the McGovern papers came to be taxed it claims to be a test case.  However, it appears that on the 13th October, 1992.  The Solicitors of an-ad hoc committee who were co-ordinating all of the claims or most of them decided that the Gaspari case was to be run as the test case.  Mr. Hanna insisted that Mr. Fitzpatrick's approach and therefore his comparisons were on the basis that this was a test case, in effect.  And at page 5 of the transcript the hearing before the Taxing Master, Mr. Fitzpatrick clearly states "I submit this is not clearly an average case".  He refers to a number of cases and examples in the context of same, this is a case out of the ordinary.
	He therefore contends that Mr. Hanratty's premise that it be treated as other than a test case is illusory.  He argues that the suggestion by Mr. Hanratty that the "hypothetical Counsel" is something which evolved from the seminal case of Dunne -v- O'Neill, (1974) I.R. p. 180 is untrue.  The actual phrase "hypothetical Counsel" is cited with approval by Gannon J. at page 191 of that judgment.  He argues the first principal is acceptance in law of this test of the hypothetical Counsel briefed by the hypothetical reasonable and prudent and experienced Solicitor.  He argues that the Taxing Master was wrong when he referred his special fee as being a comparison.  He was also wrong in saying that the special aspect was accommodated by the fact that a second Counsel was retained at the same fee.  The Court suggested that the second senior might have been retained at "the ordinary" fees, that surely if he were at the same "special fee" as the retained senior then it became the ordinary fee in an extraordinary test case.  However, Mr. Hanna argued that it was purely a matter between the clients and their Barristers.  He relied on the views of Mr. Justice McCarthy in the State (Gallagher Shatter & Co.) -v- DeValera, 1991 2 I.R. 198 at pp. 207-8.  While that statement of the law deserves the respect as spoken by a very eminent Judge, it is clearly obiter dicta.  It does not apply to the instant case.  It is a minority decision.  He also reiterates his argument that the refresher fees admitted by Mr. Fitzpatrick were more relevant than those submitted by Mr. Lowe.  He also argued that he picked his time available to the Plaintiff and imposed by the Plaintiff himself.  The Plaintiff set the deadline for the 12th January; Irish Rail did not.
	He also pointed out:-
	"Again Mr. Hanratty in referring to the Bill of Costs pointed to the fact that the description of the instructions fee ran from page 69 to 163.  In the first instance we think poor Messrs. Walsh Warren would be unmoved by that argument, their instructions fee runs to twenty-two pages - that is not a manner in which you measure the work or the importance of a case to a Solicitor.  I would stress that in the instructions fee there are other elements to take into account including the appeal to the Supreme Court.  Reference has been made to the Civil Liability Act applications; just to put that in context that was an appeal from the decision of Mr. Justice Johnson to allow an amendment to the defence and that appeal was successful.  It was procedural and did not entail any constitutional arguments as such.  There is no dispute about the fees marked in that but again I would ask that it be kept in context."

	He asks the question if the Trial Judge had not intended it to limit the costs solely and strictly to the time at which the representation became separate, why did he amend the Order?  The Court held that Iarnrod Eireann were more than entitled to dispute £100 under the Appendix W items and in the course of the trial, I pointed out that they were entitled to fight over small things.  I quoted King Lear "It is not much but tis mine own".  Mr. Hanna concedes that the Taxing Master is entitled to prefer one view rather than another but that the Taxing Master in the instant case is guilty of an unthinking rejection of clear comparison cases.  The error had extended to his analysis of Counsel's fees to a wrongful analysis of fees that firstly should not have been there, special fees, and secondly, fees that had in them an important element that is extraneous to the ordinary situation in the case and that is an agreement to pay two sets of fees!  He also argues the mere fact that Dr. Bielenberg was consulted by both parties but is then disregarded by one and is produced in the case to give evidence on behalf of the other is not a fifty/fifty split or anything like it.  They should have adopted a more subtle approach.  Mr. Hanratty then replied on his Motion.  He objects strenuously Mr. Hanna's approach referring to Mr. Fitzpatrick's analysis as:-

	"It is a clear analysis and no-one has given a similar analysis, neither Mr. Lowe nor Mr. Behan and yet it is rejected."

	Mr. Hanratty states that they had in fact provided an analysis of the work actually done under a considerable number of sub-headings, many more sub-headings than Mr. Fitzpatrick had seen fit to include in their objections (red book, tab 6, last six pages) which effectively contains a summary description of the work which was done.  He also referred again to the passage in the Bill of Costs where it took seventy pages to describe in detail the work which was done.  That work was summarised and analysed which lies in terms of the headings under which it was done.  Irish Rail had argued that it was not a test  case and then when Mr. Lowe produced a Statement of Claim by Irish Rail, paragraph 8, pleading that it was a test case,  Mr. Fitzpatrick then was batting on an extremely sticky wicket.  The proposition that it was not a test case effectively became implausible and therefore Mr. Fitzpatrick had to do the best he could in the circumstances in which he found himself!   ..... There are passages where he seems to accept it is.   
	Mr. Hanna stated that it was not a test case but then an application was made and subsequently withdrawn for liberty to adduce new evidence in support of the proposition that it was not a test case.  On the one hand when one is confronted with the Statement to the effect there was no agreement that it was a test case and then almost in the same breath a Statement to the effect that Mr. Fitzpatrick calculated his figures on the basis it was a test case and also in the same breath a Statement from my friend accepting it was "in the nature of a test case", it is very hard to resist the conclusion Irish Rail were trying to hunt with the hound and run with the hare but they cannot have it both ways.  The Court has to make a decision whether or not Mr. Fitzpatrick's arguments were or were not premised on the proposition that it was a test case.  The Court has to make a finding of fact whether or not it was a test case.
	Was there an error on the part of the Taxing Master in treating this as  "a test case" or Mr. Hanna suggests treating it as "if it were a test case". 

	 I hope I have summarised most of the salient arguments advanced by all parties. 
ISSUES FOR THE COURT
	The first issue with which the Court is concerned  is whether or nor this was "a test case". That is the kernel of this case.  The first named Defendant brought a Motion dated the 4th of August, 1995 for an Order pursuant to Order 99 Rule 38(3) of the Rules of the Superior Courts, 1986 to review the taxation by Taxing Master Flynn of the items to which objections were raised by the first named Defendant before the said Master upon the Plaintiff's Bill of Costs therein and in particular items 159,162, 301 and 304.  These were the fees for Senior and Junior Counsel on the brief.  The Motion paper also objects to the following items, 167, 169, 172, 174, 177, 179, 182, 184, 187, 189, 192, 194, 197, 199, 202, 204, 207, 209, 212, 214, 217, 219, 307, 309, 311 and 314.  These items relate to Senior and Junior Counsels' refresher fees.  
	The first named Defendant also brought another Motion also dated the 1st August, 1995 querying the allowances of the Master from the second named Defendant's Bill of Costs.  They were items 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 36, 37, 38, 39, 40, 41, 42, 43, 44 and 45 (items under Appendix W of the Rules of the Superior Courts, 1986 and Counsel's fees etc.); and items 50, 54, 181 and 184 (Senior and Junior Counsels' brief fees)
	Items 61, 63, 66, 68, 71, 73, 76, 78, 81, 83, 86, 88, 91, 93, 96, 98, 101, 103, 106, 108, 111, 113, 187 and 189 (Senior and Junior Counsels' refresher fees).
	Items 154 and 156 Senior and Junior Counsels' brief fee in relation to the Civil Liability Act issue.  It was agreed by the parties that the Court need not concern itself with these two items.  	
	Item 200 Solicitors' General Instructions fee.
	Item 215 account of Stewarts Limited Farm Management Consultants, (i.e. Dr. Bielenberg).  
	There is also a Motion dated the 15th August, 1995 on behalf of the Plaintiff.  It looks for a general review.  It only mentions one item, namely, item 324 (Solicitors' General Instructions Fee).  These are the matters before this Court.  They have been rehearsed in the submissions of  Counsel mentioned in the earlier part of this judgment.  

THE LAW
	The Court has considered all of the judgments cited in an earlier part of this judgment.  It is not necessary to rehearse them all.  A list of judgments opened to and considered by the Court are appendixed to this judgment.  In addition the Court looked at Barry -v- Spate 1904 2 IR 478 at p. 486 and at A.G. -v- Simpson 1963 IR 329.
	The seminal case is still Dunne -v- O'Neill 1974 IR , the headnote (which is fully supported by the judgment) reads as follows:-

	"In ruling the claims made by a solicitor in a party and party Bill of Costs the Taxing Master should exercise his discretion in a judicial manner and without any element of pre-determination.  In ruling the solicitor's claims for disbursements made in respect of Counsel's fees, the Taxing Master should not base his decision upon his own personal assessment; he should allow or disallow the claims in accordance with the rules of Court relating to party and party taxation which require that,  in general, each item of the claim should be assessed by the Taxing Master on the basis of what a practising solicitor, being reasonably careful and prudent, would consider a proper and reasonable fee to offer Counsel for that item in the light of the solicitor's day-to-day experience in his practice."

	At page 189 the learned judge states:-

	"More than once during the hearing of this application I had occasion to point out that neither the Taxing Master on the taxation of the costs, nor this Court on the review of the taxation, was in any way concerned with the determination of the fees to which Counsel might be entitled or with an assessment of the amount of the fee which Counsel might require to be paid.  It is no part of the function of the Taxing Master on taxation of the costs or of the Court on a review of the taxation to examine the nature or quality of the work done by or required of Counsel or to assess by measurement of fees the value of Counsel's work.  The sole matter with which the Taxing Master is concerned in respect of the items which are the subject matter of this application is whether to allow in whole or in part the disbursements made by the solicitor in the course of his practice in respect of fees to Counsel retained by him in the action in accordance with the rules relating to party and party taxation.  Because these items are disbursements made by a solicitor in the course of his practice in respect of fees to Counsel retained by him on his client's behalf the amounts of the disbursement should be assessed on the basis of what a practising solicitor who is reasonably careful and reasonably prudent would consider a proper and reasonable fee to offer to Counsel.  This standard does not involve any presumption in favour of particular fees allotted by a solicitor to Counsel of his choice but it does involve having due regard to the charges in what the practising solicitor considers to be reasonable derived from his day-to-day and year-to-year experiences in the course of his practice."

	Gannon J. went on to approve of the concept of the "hypothetical Counsel" based on the reasoning in Simpson's Motor Sales (London) Limited -v- Hendon Corporation (Number 2) 1965 1 WLR 112.  
	Parke J. points out in Irish Trust Bank Limited -v- Central Bank of Ireland
(judgment dated 12th March, 1976,  The High Court 1972 No. 1470P, - "In order to do this he (the solicitor) must not only rely upon his own experience as a solicitor but must keep himself informed as to the current practice of solicitors and Counsel".  Hamilton J. (as he them was) in Kelly -v- Breen 1978 ILRM 63 approved the judgments of Gannon J. and Parke J. as herein before recited and states at p 68:-

	"It appears to me that: 

	(1)	A successful party should, so far as is reasonable, be indemnified from the expense he is put to in an action to attain justice or enforce or defend his rights.  He is not, however, entitled to be indemnified against such costs or expenses which had been incurred or increased through overcaution, negligence or mistake or by payment of special fees to Counsel or special charges or expenses to witnesses or other persons or by any other unusual expenses.
	(2)	It is the function of the practising solicitor 

		(a)  	to select Counsel competent in the field of work to which the brief 	
			relates and 
		(b)	to determine the proper and reasonable fee which such Counsel, namely, a Counsel competent in the field of work to which the brief relates and not a particular Counsel whom the solicitor may wish to brief will be content to take.
	(3)	In the determination of such fee the practising solicitor should act reasonably, carefully and reasonably prudently and should have regard to his day-to-day and year-to-year experiences in the course of his practice.  
	(4)	These experiences include, inter alia, fees charged and paid in respect of cases of a similar nature, the practice of barristers as to marking fees insofar as accepted by solicitors in practice, fees paid to the opposing Counsel in the same matter subject to whatever factors might be special to the case and the depreciation in the value of money.
	(5)	The fees payable to Counsel by a solicitor who has retained him in an action are disbursements made by him in the course of his practice.
	(6)	The Taxing Master is obliged by virtue of O.99. r37(18) to allow all such costs, charges and expenses as shall appear to him to have been necessary or proper for the attainment of justice or for enforcing or defending the rights of any party but, save as against the party who incurred the same, no costs shall be allowed which appear to the Taxing Master to have been incurred or increased through overcaution, negligence or mistake or by payment of special fees to Counsel or special charges or expenses to witnesses or other persons or by any other unusual expenses.
	(7)	The discretion vested in the Taxing Master is not an unfettered one but is of a judicial nature and accordingly should be exercised by him without any element of pre-determination or rule of thumb or indeed any arbitrary or capricious determination.
	(8)	In the exercise of this discretion to allow or disallow all or part of a solicitor's disbursements, the Taxing Master is not entitled to prescribe the standards which he requires solicitors to adopt but is required to adopt the standard of the practising solicitor who is reasonably careful and reasonably prudent and for this purpose should keep himself informed up-to-date of the standards of solicitors in practice in relation of the fees properly charged by and payable to Counsel.  
	(9)	The Taxing Master in the exercise of his discretion is only entitled to disallow any or any part of a solicitor's disbursement including Counsel's fees if he is satisfied that no solicitor acting reasonably carefully and reasonably prudently based on his experiences in the course of his practice would have determined such fees or would have made such disbursements in the course of his practice.  It is desirable that on taxation of Bills of Costs the solicitor submitting and opposing same should be in a position to give such information of  the nature set forth at (4) hereof to the Taxing Master as shall enable him to properly exercise this discretion."

		Paragraph (9) is particularly apposite in the present case.
		The only Supreme Court decision directly in point is The State (at the prosecution of Richard F. Gallagher Shatter and Co) -v- Toirleach De Valera a Taxing Master 1981 2 1R 198 where at p.205 Finlay C. J. states as follows:-

		"In my view the learned trial judge in this case was correct in the interpretation he there places upon the decision of Hamilton J. and in the way in which he considers it should be applied to the facts of this case.  It is, of course, relevant to consider the factors set out at paragraph (1) to (8) inclusive of the decision in Kelly -v- Breen 1978 ILRM 63 in any question of the taxation of disbursements including Counsel's fees but paragraph (9) does contain what in my view is a comprehensive and definitive statement of the precise discretion which the Taxing Master should exercise on such an issue."

		I have had regard also to the various other authorities to which I was referred and to the very able arguments of all Counsel and to all the documentation with which I was provided, with particular regard to the very careful and well reasoned report of the Taxing Master.
	I am satisfied that this was in fact a "test case".  It did not start out to be.  Initially it was an action by a passenger against a carrier.  However, it then became necessary to join Michael J. Diskin and Patrick Diskin as additional Defendants.  It became necessary for them to be separately represented.  The McGovern case was the original "front runner".  It was listed in Dundalk.  However, it was going to take more than a fortnight and so it was transferred from Dundalk to Dublin.  This meant that the present case was now going to be the first to be heard.  It then became "a test case" or "in the nature of a test case".  Of course some of the work done such as a discovery in the McGovern case was of assistance in the present case.  The McGovern case was, at least for a period, a test case.  Then it yielded because of circumstances to the present case.  The damages were modest but the case had to establish with clarity the duty of carriers and of persons using accommodation crossings and was certain to go to the Supreme Court.  In my view, the Taxing Master applied the correct principles and because of the various argument which I have recited earlier in this judgment, I am quite happy that the Taxing Master was correct in his assessments with regard to Counsel's fees and refreshers.  
		As the Court has point out, the Taxing Master was wrong in only allowing £20,000 difference in the instructions fee.  The difference in the scale of work which was done by the Plaintiff's solicitor compared to the second named Defendant's solicitor shows there is a lack of proportionality.  There is no rule that the Defendant's fees on taxation will be roughly one third less than those of the Plaintiff.  The circumstances can vary enormously.  Each case must be examined on its own merits.  In the circumstances I would allow an instructions fee of £120,000  This seems to be the appropriate fee having regard to the various factors urged by Counsel with which I have dealt at an earlier stage.
		The Taxing Master is entitled to prefer one view over another.  The Court will not interfere if it is based on the legal principles enunciated in the various authorities cited.  He was entitled in the present case to prefer the views of Mr. Behan and Mr. Lowe against those of Mr. Fitzpatrick.  Since this Court has found that this was a test case or was to be treated as a  test case, the approach of the Taxing Master was impeccable.  
	Mr. Ferry could have decided he did not want this case to become a test case.  However, in the best interest of his client he had the case fixed for the 12th January.  This put great pressure on him, as already recited, he had to change from an ordinary action against the carrier into a very complex case with additional parties, a great deal more actual evidence and greater legal problems.  This Court is satisfied that the Taxing Master has clearly, completely and corectly set out all the appropriate authorities.  As already stated, the Courts should be slow to interfere with the finding of the Taxing Master and the Court is not indulging in a re-hearing, but merely a review.  A Taxing Master has a wealth of experience, not available to the normal judge, in dealing with his speciality, namely, tax and costs.  The transcript before the learned Taxing Master shows that he was meticulous in applying the principles.  The first named Defendant really bases his objections on two grounds, namely, that this was not a test case or in the nature of a test case and, secondly, that special regard was not held to the comparisons offered by Mr. Fitzpatrick.  I do not accept either propositions and accordingly I will not interfere with the items mentioned in the two Notices of Motion brought by Iarnrod Eireann/Irish Rail in relation to the fees marked by Counsel.
	As regards the account of Stewarts Limited Farm Management Consultants which relates to the fee in respect of a witness Dr. Bielenberg, the Taxing Master was entitled to come to the decision which he reached on the evidence before him and the Court has no grounds to interfere.  As already indicated, I would allow a variation in the instructions fee on Mr. Hanratty's motion primarily, but not exclusively, on lack of proportionality. 

The following authorities were opened to the Court:-

Dunne -v- O'Neill, 1974 I.R., 180
Kelly -v- Breen, 1978 I.L.R.M. 63
Crotty -v- An Taoiseach, 1990 1 I.L.R.M. 617
The State (Kelleher Shatter & Co.) -v- DeValera, 1991 2 I.R. 198
Smyth -v- Tunney, 1993 1 I.R. 451
Best -v- Welcome Foundation Limited, 1996 1 I.L.R.M. 34
McGarry -v- Sligo County Council, 1991 I.R. 99 at pp. 119-120
McGrory -v- Express Newspapers Plc., Murphy J. unreported, 21st July, 1995
Loveday -v- Renton & Another (No. 2), 1992 3 All E.R. 184
Brian Clarke -v- Noel Heartly and James McMordie trading as McMordie Haulage, Defendants, reported judgment of Barr J. delivered the 2nd December, 1992 and a note prepared by James Connolly B.L. (as he then was) on the judgment of Mr. Justice Lardner given the 24th June, 1988 in the case of Coras Iompair Eireann, Plaintiff -v- Michael Carroll and Wexford County Council
The Rules of the Superior Courts
The Court in addition looked at Barry -v- Spate, 1904 2 I.R. 478 particularly at p. 486 and at the Attorney General -v- Simpson, 1963 I.R. 329.