High Court of Ireland Decisions

1. This matter came before the Court by way of Notice of Motion pursuant to O. 99, Rule 38(3) of the Rules of the Superior Courts 1986 to review the taxation of a Bill of Costs presented by the Applicants pursuant to an award of costs granted at the conclusion of the above entitled Tribunal on the 29th day of July, 1994.

2. The items the subject of review set out in the Notice of Motion dated 21st June, 1999 were:-

3. At the hearing the Applicants elected not to pursue (c) and the Respondent conceded liability to pay the fees as taxed attributable to Mr. O’Malley.

4. The hearings held by the Tribunal lasted 226 days of which the Applicants’ Solicitor, Mr. Donal Spring of Spring Murray & Co was in attendance for 190 days (save for a short holiday period, when his partner, Mr. Murray, was in attendance). There is neither suggestion or evidence by anyone at any time that there was any element of unnecessary attendance or generation of irrelevant documentation or paperwork by Mr. Spring. The costs incurred by the Applicants at and in connection with their representation at the Tribunal of Inquiry were provided for and are recorded in its report as cited by the Taxing Master in his original ruling dated 31st July, 1998 (Vol. 1, p. 19-72) as a result of the hearing before him on 30th April, 1998, of which there is a transcript (Vol. 2A, p. 1-115). Objections were carried in, and the hearing of those objections of which there is a transcript (Vol. 2A, p. 116-210) and the Taxing Master delivered his ruling on the objections on 29th May, 1999 (Vol. 1, p. 73-122).

5. The instructions fee claimed was £785,000, which on the original ruling was reduced to £320,000 (made up as to a daily rate of £1,000 for 190 days, ie £190,000 plus a figure of £130,000 for the intangibles). This figure was altered on the ruling of 29th May, 1999 to £485,000 (made up as to a daily rate of £1,500 for 190 days, ie, £285,000 plus a figure for the intangibles of £200,000). The figure claimed and a brief fee by Senior Counsel was £152,250 which was reduced to £52,500 on the original ruling, this figure remained unaltered after the hearing of the objections.

6. In his original ruling the Taxing Master acknowledged (Vol. 1, p. 25 , internal p. 7) that:-

7. Having started the ball rolling, so to speak, the Tribunal were furnished with a Book 1 (dated 20th June, 1991) prepared with the assistance of a Solicitor and Counsel, for which Mr. Spring took responsibility - being a summary of allegations made or referred to in Dail Eireann and an I.T.V. programme entitled “World in Action”. Likewise, a second book was prepared referable to the documents and persons relevant to allegations made in Dail Eireann and on I.T.V. (Book 2). The Tribunal it seems were pleased to have Mr. Spring’s assistance in this regard as Mr. Spring had ready access to the Dail Library where the necessary research material was available. In the events the Tribunal formulated its structure for enquiry (Book 3) on the information it had received - and with some remarkable elements of coincidence, did so under headings and topics identified by Mr. Spring.

8. These in broad outline set out the submissions of the parties, which were founded on some written submissions (in the case of the Applicant in Vol. 1, p. 2-14, in the case of the Respondent in a separate booklet, marked “D”) and oral submissions to the Court. It was common case that the applicable statute law and Section 27 and the applicable rule of the Rules of the Superior Court 1986 was O. 99, r. 37(22) and in particular those elements upon which the discretion of the Taxing Master should be exercised and set out in subparagraph (ii) thereof.

9. At the outset Mr. Meenan stated that he was not advancing any case that the role of Mr. Spring or Mr. Desmond equated or was comparable to that of the main parties, ie, the Minister for Agriculture and the Goodman Group of Companies. However, stress was laid on the importance of the role of Messrs. Spring & Desmond at the Tribunal, for though not parties in the forefront of the controversy, their reputations were at stake, and they were extremely concerned that such allegations or matters of concern that they had been directly or indirectly responsible for bringing into the public domain would be sustained. There was an appreciation that this would be a very difficult task in the light of their decision to rely on Parliamentary Privilege and their anxiety and decision not to disclose their sources of information. Notwithstanding the fact that the evidence of Messrs. Spring & Desmond was modest in time terms in comparison to other parties and witnesses yet their presence and attendance through their Solicitor in respect of a hearing of 226 days in comparison with other politicians is as follows:-

10. Spring & Desmond 190 Days

11. MacGiolla & Rabbitte 129 Days

12. Bruton & Ors. 33 Days

13. When the Solicitor undertook to represent Messrs. Spring & Desmond he did so in uncertain circumstances but there was a commitment sought by his client, (Vol. 2A, p. 31, Q 11) that once given, became and remained time consuming (Vol. 2A, p. 35, Q. 18) and virtually “locked in” the Solicitor to the Tribunal to the exclusion of his practice at his office (Vol. 2A, p. 38 Q. from Taxing Master). There was no matter of choice as to when the Solicitor would attend the Tribunal, once the commitment was given (Vol. 2A, p. 45, Q. 56) (Vol. 2A, p. 37, Q. 29, 30).

14. The Taxing Master is correct in his original Ruling (Vol. 1, p. 40, internal, p. 22) in noting that no wrong-doings were alleged against Messrs. Spring & Desmond, no experts were instructed and most of the documentation briefed to Counsel was provided by the Tribunal (my emphasis). While this may very well reduce the amount of paperwork considerably, it seems clear to me that the constant daily consultations with the client after normal working hours for a Solicitor (eg Vol. 2A, p. 32, Q. 13). The manner of the briefing of Counsel both initially and throughout the hearing and essentially, but not exclusively, orally - initially the fact that the hearings began very soon after the setting up of the Tribunal and its format and length were unpredictable necessitated this course. Thereafter the briefing of Counsel was conducted on an ongoing basis as topics and documentation emerged at and from the Tribunal. This fact places a very heavy burden on Solicitor and Counsel, the fact that the pressure of time and volume of paper were dealt with as they were in this case worked (Vol. 2A, p. 34, Q. Line 12). The amount of paperwork was reduced - but not the amount of work. Altogether from time constraints and volume of documentation, there was the sensitivity of the claims of Parliamentary Privilege and the protection of sources and perhaps the spectre of later Discovery. However, the fact that Messrs. Spring & Desmond were not alleged of wrongdoing does not diminish the extra sensitivity of their public reputations, not only for probity, but for responsibility and judgment, that serious economic, financial or social damage could flow from the allegations they put before the Tribunal.... were factors to be considered if not nicely balanced against the engagement or consideration of preparing experts reports or consulting experts or preparing or settling proofs of evidence or giving guidance thereon.

15. In marked contrast to the Taxing Master’s remark “that no wrongdoings were alleged against Messrs. Spring & Desmond” are his remarks in his Ruling on the MacGiolla and Rabbitte taxation of 23rd February, 1996 (Book 6, p. 18/31).

16. The Tribunal historically speaking was without parallel in the history of the State when it was set up in 1991, the range of concerns upon which Counsel required to be briefed and instructed upon can be briefly (and roughly) summarised under the following headings:-

17. These were the matters that the Taxing Master was concerned about when he (under Section 27(1)) set about the examination of the nature and extent of any work done by the Solicitor. In exercising the discretion under Section 27(2) to be fair and reasonable in the circumstances of the case, the Taxing Master shall have regard to all relevant circumstances (as provided for in O. 99, Rule 27(22)(ii) of the Rules, and in particular to:-

18. Evidence in this regard was given by Mr. Donal Spring (eg. Vol. 2A, p. 35 to p. 37, p. 27, p. 49-50, Q. 79). I am satisfied that the matters which had to be addressed by Mr. Donal Spring were complex, difficult and novel - the transcripts testify to this and the Taxing Master with great skill records the complexities, difficulties and novelty. However, both as to the daily rate and the intangibles the Taxing Master - in his original Ruling (Vol. 1, p. 42 (internal p. 24)):-

19. The Taxing Master clearly had a fine grasp of the scale and magnitude of the task involved. He expressed himself (Book 6, p. 9/31) in this way:-

20. That Mr. Donal Spring had the requisite skill for the difficult task is not in dispute or the very onerous responsibility he undertook. Very few of the participants had specialised knowledge of the Beef Processing Industry. The Taxing Master in his several rulings refers to the process of learning those engaged at the Tribunal underwent - there were some others (ie those persons involved in the Beef Processing Industry) who had a specialised knowledge, not in the sense contemplated by the Rules who, like Mr Spring, were on a learning curve. The problems encountered under this heading centres on:-

21. The Taxing Master having quoted from the Bill of Costs (Vol. 2B, p. 417, internal p. 127 to 128) proceeds in his original Ruling (Vol. 1, p. 48, internal p. 30) thus:-

22. This excerpt was the subject of some newspaper reportage which it was stated to have caused damage and embarrassment to Mr. Spring as a Solicitor. Furthermore, it belittled and demeaned his professionalism and he found it offensive. The Taxing Master accepted that:-

23. And then went on to make some comparisons, which I believe to be of significance:-

24. In no instance are “the other” with whom the comparisons is made identified: the comparisons make sense only if “the other” is either the Minister for Agriculture, the Goodman Group of Companies or the Tribunal itself against which it is clear Mr. Spring conceded and admitted his position is and was not comparable. That a comparison may be fair and meaningful one must compare like with like, a concept clearly understood by the Taxing Master (Book 6, p. 15/31): again the importance of identifying comparables to reach a valid conclusion is likewise understood (Book 7, p. 16).

25. As with the expression tête-à-tête, describing Mr. Spring’s work as lilliputian was given newspaper publicity and he considered it was an unfair and gratuitously offensive criticism. This matter was “carried in” in the objections and the Taxing Master deals with it in his Ruling of 29th May, 1999 (Vol. 1, p. 97, et seq). Mr. Meenan without using the expression characterised the response as tendentious, and the situation he considered to be exacerbated as the Taxing Master expressed himself ultimately in this fashion (Vol. 1, p. 101, internal p. 29):-

26. Again, “others” are identified. I refrain from a nice consideration of grammar and syntax. Infelicity of diction should not of itself vitiate a decision, it may or may not be the tone and tenor of the language used betoken an underlying disposition - which may be protested or denied - indicative of apparent bias if not real bias. The manner in which a matter is expressed can, depending on circumstances, be of importance.

27. The expression tête-à-tête has as is clear from The Shorter Oxford Dictionary (3rd Ed: Onions) the meaning recorded by the Taxing Master, but I venture to think it would be colloquially understood as casual or intimate chit chat. I prefer the word “informal” to describe the consultations as used by Mr. Fitzpatrick (the Respondent’s Legal Cost Accountant at the taxation) (Vol. 2A, p. 90, internal p. 90 of transcript). I believe it to be the correct and accurate description of the consultations.

28. “Lilliputian” is a relative adjective - but in the absence of an identified benchmark or standard or person or work, it could be taken as a derogatory expression, as it was in the instant case, I believe, with some justification by the Applicant's Solicitor. The sense of having added insult to injury by describing Mr. Donal Spring’s work as shallow (albeit “relatively shallow”) was considered by Mr. Meenan adequate reason to advance the point that it was part of the complaint going to the overall justice of the case of the Applicant, and that the Taxing Master had erred as to the amount allowed so that the decision was unjust. The question of the tone of a ruling and the language in which is expressed can be a basis upon which the High Court on review can come to a view that a claim has not been fairly disposed of and that an allowance or disallowance was erroneous and unjust ( De Rossa -v- Independent Newspapers Plc - unreported judgment of Geoghegan J, 7th March, 2000). While the Taxing Master may not have intended to be malicious (Vol. 1, p. 99, internal p. 27 of Ruling dated 29th May, 1999). I believe that the tone and tenor of the ruling is scornful in its depiction of Mr. Spring’s work, work practices and efforts, and is unjust.

29. I have no doubt that the most difficult task facing the Taxing Master was the scarcity of written records of the work of the Solicitor - it is a topic upon which there is considerable stress laid in opposing the bill and is extensively and repeatedly returned to in the rulings.

30. In terms of the number of documents generated at the Tribunal it would not be an understatement to describe the documents generated by the Solicitor as almost insignificant. The same could not be said of their importance. Books 1 and 2 - in particular Book 1, while it did not set the agenda for the Tribunal, which set its own agenda, very clearly was extremely influential in identifying and focusing on the range of inquiry undertaken by the Tribunal. As the most public representative who brought the defects in the Beef Proceeding Industry to the fore, it was imperative that the content and accuracy of the allegations be as near human perfection as possible given his position in public life. I do not underestimate the importance both for the client and the Tribunal that those Books and the Statements were of a calibre that would withstand the most sustained and vigorous scrutiny. So much for documents prepared “for public consumption”. The number of documents prepared “for private use”, eg synopses of statements of experts, précis of rulings or elements in transcripts may not have been hugely extensive but in the events was clearly adequate for the clients’ purposes - the constant reportage and consultations with the clients. The next category of documents are those one might reasonably have supposed would be extensive, ie, attendance [on clients, on counsel, in person or on the telephone], which are as recorded “sparse”. Likewise the briefing of Counsel and advices on proofs are for all practical purposes non-existent.

31. Mr. Fitzgerald for the Minister argued that the system of taxation of costs cannot work without an adequacy of paper records, they are an important signpost as to the work undertaken by a solicitor. I do not accept that the system cannot work - but I fully accept the Taxing Master’s view that “the absence of attendance notes presented a very real problem in assessing the instruction fee”. The difficulty that arose, is in my opinion, largely brought about by the modus operandi chosen by Mr. Spring; but I believe that his decision - despite the problems it has caused for himself and others was in understandable and reasonable in the particular circumstances in which he worked. I note:-

32. Whatever deficiencies in documentary records exists - and it does, is in the very peculiar circumstances of this case understandable. On the other main omissions in the category of documents referred to viz (i) written brief to Counsel and (ii) advices on proofs; I have noted earlier in this judgment that the Ministerial Order (on foot of the Resolution of the Dail) is dated 31st May, 1999 and that Book 1 prepared with the assistance of Solicitor and Counsel is dated 20th June, 1991 and the first preliminary setting/hearing of the Tribunal was 21st June, 1991. In short, this was a form of instant briefing simultaneous with engagement. The absence of a written documented brief containing a statement of the case for Counsel is an absence of a customary element of “work” but its absence in the instant case is understandable and excusable, in part, given the initial time constraints. Given the role of Mr. Spring at the Tribunal - with the sole exception of his proof of evidence, there was no necessity for any Advice on Proofs.

33. While I have dealt only specifically with subparagraphs (a), (b) and (c) of O. 99, R. 37(22)(ii), I am mindful of the various other headings under which discretion is to be guided and to Counsel’s submissions on Best -v- Wellcome Foundation Ltd. (No 3), [ 1996] 3 IR.. 378 and the judgment of Baron J at p. 387.

34. Notwithstanding the unique expertise and great skill and industry shown by the Taxing Master in his Rulings, I am satisfied that there is one major underlying flaw or error in his decision. In his first Ruling (Vol. 1, p. 51, internal, p. 33):-

35. I do not say the Taxing Master ought not to have had kept himself fully informed on other Bills of Costs presented to him for ruling, but I am satisfied the comparison he makes is not to compare like with like. Goodman’s position both as to the nature and extent of their involvement was both different in character and scale at least. Furthermore, Mr. Spring concedes he is not to be compared to Goodman. This comparison is effectively carried into the Taxing Master’s second Ruling (Vol. 1, p. 93-95). In another respect, Mr. Donal Spring’s position differed from that of other Solicitors at the Tribunal, whose note taking and keeping of records might well have (in part at least) been motivated by professional negligence indemnity insurance - which was of no concern to him (Vol. 2B, p. 220, p. 26). I note also that on the hearing of Objections, Mr. Donal Spring indicated that certain prepared documents were not submitted (Vol. 2B, p. 250), the basis for this attitude was protection of sources.

36. I accept that Mr. Donal Spring did not have to exercise the difficulties in taking proofs of evidence from intended witnesses (save his two nominated clients) and generally organising the case or ensuring the availability of witnesses, (to adopt the words of Murphy J in Smyth -v- Tunney, [1993] 1 IR 451). Ex facie this should mean a narrowing of the extent of the Solicitors work which should be reflected in the instructions fee. However, this is not an inevitable conclusion because the very fact that one has no organising or controlling role and cannot decide on witnesses to be called can - and I believe in the instant case did, add to the worry, anxiety and responsibility of ensuring that the very matters, issues and allegations raised were dealt with in the interests of and to the satisfaction of the clients. To seek to influence and organise affairs without being in a position to conduct and organise affairs calls for fine skill in courage, astuteness, persistence and persuasion well above the conventional, the tactical skill to achieve this objective shared by Solicitor and Counsel was not in the category of usual. Therefore, the nature of the work can, and in the instance case I believe counterbalanced the limitation of the extent of the work.

37. Mindful of the several authorities relied upon by the parties (set out in the Appendix to this judgment) which I have carefully read and considered) together with DeRossa's case hereinbefore referred to and the unreported judgment of Kearns J. of 5th May, 2000 in Superquinn Limited -v- Bray U.D.C. & Ors and mindful of the self restraint to be observed by the court in not usurping the role of the Taxing Master as expressed by McCracken J. in Smyth -v- Tunney [1991] 1 ILRM 211 at 213 I believe the Taxing Master was correct in his reference to Treasury Solicitor -v- Dinsmore Regester [1978] 2 AKER 920; (also [1978] IWLR 446) (Vol. 1 p. 44/45) in citing Donaldson J. in reference to an Instruction Fee, thus -

38. However, in this case I believe the judgment as expressed in the Rulings is not balanced and is in error and in the result unjust in the matter above adverted to and in the application of Bloomer's case in which Geoghegan J indicates the proper approach to be taken on a review by a court.

39. Mr Donal Spring gave oral evidence before the Taxing Master on two occasions and was subject to cross-examination. while he was properly queried about attendances, documentation - and very specifically the lack of generated paper records, his credit as a witness was not put in issue. Mr O'Neill, the Legal Costs Accountant for the Applicant, submitted to the Taxing Master that Mr Spring's "evidence was not rebutted" (Vol. 2B p. 264), but in the context of a party and party taxation this point had less validity than in a Solicitor and client taxation, a matter properly considered by the Taxing Master (Vol. 1 p. 92, interval p. 20 of Rulings on Objections).

40. In the course of the Rulings on Objections the following extracts seem in point on the question of the onus of proof:-

41. The foregoing extracts appear in the Ruling just before the explanation/justification/apologia for the use of the expressions "tête-à-tête" and "lilliputian". Read through to its conclusion under the topic "Instructions Fee" the Taxing Master refers to the judgment of Gannon (unreported 2nd December, 1994) in Heffernan -v- Heffernan and the achievement of a "determination of a judicial type by the Taxing Master".

42. While the necessity of written records and their importance is repeatedly emphasised in case law and referred to in the transcripts and Rulings in the taxation in the instant case and their absence posed a real problem on taxation and the consequences of its absence cannot be visited upon the Defendants/Respondent, nevertheless its relative importance must be considered in each case. A variety of circumstances can be envisaged e.g. the Solicitor who did the work dies and there are none, some or voluminous records, the Solicitor is alive but his records are not available for whatever reason e.g. fire, theft, lost, minimal to sparse because of sensitivity, secrecy, indolence in maintenance. Each case must be judged on its own facts. In the instant case the Solicitor gave evidence, but not all his evidence was corroborated/supported/verified by documentary evidence. His credit was not put in issue, the truth of his evidence, however deficient in documentary back up, was not challenged. I can find no expression of disbelief or doubt expressed by his questioners. If there was an element of doubt or his responses lacked conviction I would have thought in fairness, before a determination of a judicial type was made, that such doubt or disbelief ought to have been articulated or put to Mr Spring so that he could have an opportunity to respond thereto. If do not think it would be necessary to offensively put to the witness that he was telling lies or untruthful, indeed Mr Fitzpatrick's cross-examination is a model of fairness. I cannot find in the transcripts of the taxation that this basic natural justice was accorded to Mr Spring and do not at all suggest that this was deliberate - indeed the oversight might have been attributable to the range of detail at the taxation hearings, or perhaps the distraction (brought about by the expressions "tête-à-tête" and "lilliputian" in the original (Ruling) at the hearing of the Objections.

43. Much agreement was advanced in Court that the Applicant was in no better or worse position that the other politicians in terms of allegations, a concession made by Mr Fitzpatrick (Vol. 2 B p. 276) and a like concession in relation to the instruction fee, indeed to quote Mr Fitzpatrick on dealing with the instructions fee -

44. Altogether from the number of day's attendance at the Tribunal, Mr O'Malley, whose prime concern was the Export Credit Insurance Scheme (Book 7 p.3) which I understand to have been the most complex of the issues dealt with by the Tribunal and the one to which most time was devoted to (Document "C"). I have no doubt that the nearest comparable bill is that of Messrs MacGiolla and Rabbitte both as to time and range of issues. Altogether from documentary records there are two major points of difference:-

45. Mr White, Solicitor for Messrs MacGiolla and Rabbitte was a sole practitioner and was allowed £150,000 to reflect the complexity and difficulties of the case and the protracted time involved and the difficulties faced. A like sum was considered fair and reasonable by the Taxing Master for "the skill and specialised knowledge the Solicitor to equip himself with to proceed properly in the matter and particular regard was paid to the areas he had to cover" (Book 6 p.17/31, 18/31)

46. Mr Spring was 35 years of age in 1991 when he took the assignment in the early days of a partnership. His evidence on the protracted time involved (approximately 32% was greater than Mr White) was:-

47. Having read in full the transcripts of evidence I am quite satisfied that Mr Spring's necessity to equip himself ('the learning curve' referred to in the transcript) to proceed properly in the matter and in particular having regard to the new areas e.g. of law, commerce, regulations) he had to cover with the skill and specialised knowledge was no less and may be greater than Mr White.

48. Mr White was apparently allowed a further figure of £10,000 under the intangible heading for dealing with Parliamentary Privilege (having originally been allowed £40,000 (Book 6 p.19/31). In short the allowances made on intangibles on review total £310,000 (which insofar as I have been informed is subject to appeal on the element of Parliamentary Privilege as a head of claim). A total of £200,000 was in contrast allowed to Mr. Spring.

49. Realising that the exercise in assessment is not a pure arithmetical calculation, but one of balanced judgment, I increase the instructions fee as allowed by the Taxing Master not by the £110,000 difference in intangibles between the allowance made to Mr. White at £310,000 and £200,000 as allowed to Mr. Spring but by the sum of £90,000 to £575,000. In doing so I make no comment on the correctness or otherwise in the £310,000 of £10,000 in respect of Parliamentary Privilege. The difference between the £110,000 difference on the bills and the increased allowance to Mr. Spring of £90,000 is to reflect (not by way of penalty) the consequences of the inadequacy of documentary verification of the work done as sworn by Mr. Spring, but to underline the importance of documentary records in the case of a party and party taxation. The Taxing Master rightly stressed this matter in his Ruling, but in my judgment did so disproportionately to the point of exaggeration against Mr. Spring.

50. The following preliminary points can be made having regard to Document “B” - Brief Fees:-

51. While instructive, I think the information in Document “B” is of limited assistance. Furthermore, the inherent nature of a brief fee is composite in character, and while there is absolutely nothing wrong in Counsel - for the assistance of the client, Solicitor or Taxing Master in seeking to assist in an appreciation of the elements that go to the composite whole either by reference of time attributed - when fees are marked retrospectively - or by reference to their relative burden or importance: I believe only one brief fee is allowable. There are many elements that go in to the setting, negotiating or determining the appropriate level of brief fee. In the case of a taxation on a party and party basis, Order 99(10)(2) provides that on a taxation on that basis “.... there shall be allowed all costs as were necessary or proper for the attainment of justice or for enforcing or defending the rights of the party whose costs are being taxed”.

52. In order to view the effort and exertion involved by Counsel, regard must be had to the factual circumstances. When Counsel were originally engaged not even a passable estimation of the duration of the Tribunal it seems was possible. Notwithstanding the preparation, with Counsel’s assistance of the preliminary Book 1, which in the events almost became the blue print for the Tribunal, the range of topics to be studied and carried is a matter of importance. The fact that (1) the briefing may have occurred on an ad hoc basis as topics arose (2) the documentation, much or most of which came, (at times over which the Applicant had no control) was voluminous, and very often at short notice; added to the stress under which Counsel had to work. I cannot and do not accept that the fee marked 150,000 guineas) or that allowed £52,500) are correct nor do I think it proper to take the average of £105,000).

53. When Counsel marked the fee of £156,500 he did so retrospectively. I am aware that the brief fees allowed to Messrs. MacGiolla and Rabbitte and Mr. O’Malley were stated to the Taxing Master on 12th May, 1999 to be subject by review to the Court ( Vol. 2B, p. 275) and the vexed question of allowing a separate fee for Parliamentary Privilege was unresolved.

54. In my opinion and judgment the amount of disallowance on Senior Counsel’s brief fee is so much in error as to be unjust. In my judgment the proper brief fee should be £75,000.

55. Court, 1995 (Kelly J.) 3 December, 1998).

56. Geoghegan J., 3 December, 1999).