Taxing Masters of the High Court - Business of the office
Taxing Masters of the High Court
Taxation of costs - booklet
Taxation of costs
When a person or a company, otherwise known as a party, incurs costs as a result of legal action they may have those costs taxed.
The taxation of costs is the assessment and measurement of legal costs by an officer known as a Taxing Master.
A Taxing Master provides an independent and impartial process of assessment of legal costs which endeavours to achieve a balance between the costs involved and the services rendered.
The Taxing Master
A Taxing Master performs a function of a judicial nature in relation to costs. The Court Officers Act, 1926 provides that there should be attached to the High Court the Taxing Masters Office. The position of the Taxing Masters and the Taxing Masters Office is now governed by the Courts (Supplemental Provisions) Act, 1961. The Eighth Schedule thereof provides at Section 19 "each of the Taxing masters shall have and exercise the following duties;
such powers, authorities, duties and functions as are for the time being conferred on or assigned to them by statute or rule of court;
unless and until otherwise provided by statute or rule or court - all such powers, authorities, duties and functions in relation to the High Court and the Supreme Court, as were formerly possessed, and performed by the Taxing Masters of the former Supreme Court of Judicature in Southern Ireland in relation to that Court;
unless and until otherwise provided by statute or rule of court - all such powers, authorities and functions in relation to the Court of Criminal Appeal, the Chief Justice and the President of the High Court, as were immediately before the operative date possessed or exercised by them in relation to the existing Court of Criminal Appeal, the existing Chief Justice and the existing President of the High Court respectively;
such other powers, authorities, duties and functions as were immediately before the passing of the Act of 1924 vested or imposed by law in or on the several Taxing Masters of the former Supreme Court of Judicature in Southern Ireland; and
the duty of taxing any costs to be received, allowed or paid to a solicitor as respects business undertaken on or after the 1st day of October 1957, in relation to the exercise by a local authority of their powers under the Labourers (Ireland) Acts 1883 to 1958.
His duty is to assess the fair and reasonable remuneration that a party has to pay to the other side.
It should be noted that the Taxing Master does not have regulatory or investigative powers in relation to allegations of excessive charges by solicitors, this being a statutory function of the Law Society of Ireland.
Currently, there are two Taxing Masters.
When costs are taxed
Usually costs are taxed at the conclusion of a case but this is not always so and a Court may award costs in respect of certain applications prior to the actual conclusion of the cause or matter before it.
The party claiming costs - usually the successful Plaintiff or Defendant, must demonstrate to the satisfaction of the Taxing Master that such costs as are incurred were proper and reasonable in all the circumstances. The Taxing Master is guided by wide experience, gained by a professional background as a solicitor and in taxing costs.
Categories of costs
There are two main categories of costs;
(i) Party and Party Costs, and
(ii) Solicitor and Client Costs
Party and Party costs:
Party and Party costs cover all costs, charges and expenses reasonably incurred by one party for the purposes of the relevant proceedings which the other side is obliged to pay. There may be costs in an action that are not allowable as Party and Party costs. The party claiming costs must justify why they were incurred and why those costs should be allowed. The Party and Party Costs may not cover the whole of the costs incurred in an action and the courts have held that:-
In costs between party and party one does not get full indemnity for costs incurred against the other. The principle to be considered in relation to party and party costs is that you are bound in the conduct of your case to have regard to the fact that your adversary may in the end have to pay your costs. You cannot indulge in a 'luxury of payment'.
All such costs, charges and expenses which appear to the Taxing Master to be necessary and proper in pursuit of the attainment of justice or for enforcing or defending the rights of a person are essentially allowable costs.
Solicitor and client costs:
Solicitor and client costs are those costs that a client is obliged to pay his solicitor which are not recoverable under Party and Party costs.
The courts have held that the following distinction is made between Party and Party and Solicitor and Client costs in an action:-
"The costs of the Plaintiff as against the party do not mean all the costs he has incurred but all the costs he has incurred by the act of the defendant. That is the difference between party and party and solicitor and client costs - e.g.. it may be reasonable to have several consultations but it does not follow he is to get them all against the party."
Bills of costs
Section 68 of the Solicitors (Amendment) Act, 1994 provides for charges to clients. Under these provisions a solicitor should furnish a detailed statement of all the legal costs to his client. This statement of costs should contain:-
(a) a summary of the legal services provided;
(b) the total amount of damages received or other monies recovered;
(c) details of all the charges incurred and the nature of same.
Generally at the conclusion of the business or by arrangement with the client the solicitor will produce a detailed statement of costs and this is known as a Bill of Costs.
Generally, before making any payment for costs, the client has a right to have his costs taxed. At the conclusion of the taxation there is a duty imposed upon the amount of costs allowed by the Taxing Master - fees are set out in the Supreme Court and High Court (Fees) Order. However, in Solicitor and Client taxations, if more than one sixth of the amount claimed is disallowed, the client may not be liable for this duty, otherwise this duty is payable by the Solicitor who presents the Bill of Costs.
When a Bill of Costs has been taxed the Bill will show whether particular items have been allowed in part or in full and the amount of any deduction will appear in a separate column in the Bill. The costs of taxation are within the discretion of the Taxing Master.
A Bill of Costs comprises of pages that are split into seven separate columns. The columns will contain information as follows;
Column 1 - dates
Column 2 - the number of the items of cost. Each item should be given an individual number
Column 3 - the particulars of the services charged for
Column 4 - the amount in respect of disbursements - i.e. the payments made by the solicitor on behalf of the client in relation to the case
Column 5 - deductions for the amounts claimed in respect of disbursements if the Taxing Master considers that the amounts claimed are higher than that which could be considered fair and reasonable.
Column 6 - theamounts claimed in respect of professional charges
Column 7 -deductions that the Taxing Master has made, if any.
In respect of deductions the amount deducted is placed in the appropriate column next to the item to which it refers and the amount allowed is computed by subtracting the amount deducted from the amount claimed.
The steps involved in taxing costs
Taxation of costs may arise as a result of;
an order of a court,
an arbitration hearing,
notice of discontinuance,
a demand by a client to have his costs taxed,
the cost of registering judgments as mortgages,
notice of acceptance of lodgment,
order of a tribunal
A client wishing to tax his costs should request his solicitor to forward a Requisition to Tax form to him so that the Bill of Costs can be referred to taxation.
On receipt of this Requisition the client should sign and return it to the solicitor who will then set the matter down for taxation. The client will be notified by the solicitor of the date of taxation and should attend same. The client has the option of retaining legal representation at the hearing.
If the solicitor refuses to set the matter down for taxation the client may do so pursuant to Order 99, Rule 33 of the Rules of the Superior Courts, 1986 by:-
(i) completing and lodging the Requisition to Tax form or alternatively lodging the Bill of Costs (pursuant to Order 99, Rule 33(1) of the Rules of the Superior Courts, 1986);
(ii) lodging a Summons to Tax/Notice to Tax (in triplicate), and
(iii) lodging the Bills of Costs.
The Requisition and the Summons are available from most legal stationers and all should be lodged in the Taxing Masters' Office. The client will be informed as to the date of taxation when he should be in attendance.
A Notice to Tax or Summons to Tax should issue and be served so as to allow 14 clear days to elapse between the day of service and the day mentioned for attendance.
If the interests of justice dictate that the time limits should be extended or limited the Taxing Masters have a discretion to exercise such judgment as the case dictates.
Time limits are very important and where there is any doubt, advice should be sought from a member of the legal profession.
The taxation commences by both parties introducing themselves and indicating who they represent, when the matter is called for hearing. The party taxing the costs usually opens the case and is legally represented at the hearing. Each party to the taxation is entitled to be present and to be heard. Each item in the Bill of Costs is examined.
The amounts in respect of some items are presented in Appendix W of the Rules of the Superior Courts, 1986. These are termed Scheduled Items and usually do not present a problem. The areas that may be problematic are those costs concerning witnesses, solicitors' instruction fees and counsels' fees. Either or both parties to the taxation may make submissions in relation to disputed items.
Following the taxation, the Taxing Master will consider the submissions made, will have regard to any supporting documentation furnished in respect of the taxation and will assess the fees having regard to the nature of the case and the extent of the work as well as factors such as complexity, magnitude, etc.
The Taxing Master, having considered the submissions, the evidence tendered and supporting documentation will either;
(i) deliver an ex tempore ruling, [that is oral]
(iii) reserve his decision for consideration and deliver a written ruling (usually) at some later date. The interested parties are notified of the proposed dateof delivery thereof.
He will then allow what he considers to be fair and reasonable costs. Either party may object to certain allowances and an appeal procedure is initiated whereby the Taxing Master will reconsider the amounts allowed. The objecting party is required to deliver a list of his specific objections giving his grounds of objection and reasons therefor. The opposite party is given an opportunity to reply.
Time limits are applicable. See Order 99, Rule 38(1) Superior Court Rules, 1986.
A person who is dissatisfied with the allowances may, before the Certificate of Taxation is signed but not later than 14 days after the taxation, apply to the Taxing Master to review the taxation. The Taxing Master may receive further evidence in respect of the items objected to. A person being dissatisfied may, after the hearing of the objections by the Taxing Master, apply to the court for an order to review the taxation. As to time limits - see Order 99, Rule 38(3).
Following the taxation process
The Taxing Master shall note on the original Bill of Costs the amounts allowed, amounts disallowed or the amount of deductions as the case may be.
Having concluded the taxation, the Taxing Master issues a Certificate of Taxation. However, on occasions, an interim certificate may issue, particularly where items and the amounts are not in dispute. Normally, upon the completion of the taxation, the Taxing Master shall issue a Certificate of Taxation.
The solicitor or the person so entitled should take possession of the certificate within a period of 21 days or such further period as may be dictated by the court or the Taxing Master. If the solicitor fails to take up the certificate within the period allowed, the client may take up same.
The certificate is a very important document and is required to enforce the determination of the Taxing Master.
Rules and Legislation
» Attornies and Solicitors (Ireland) Act, 1849
» Attornies and Solicitors Act, 1870
» Solicitors Remuneration General Order, 1884
» The Legal Practitioners (Ireland), Act 1876
» Solicitors' Remuneration Act, 1881
» Sureme Court and High Court (Fees) Order, 2003 (S.I. No. 89 of 2003)
» Rules of the Superior Courts 1986 (S. I. No.15 of 1986)
» The Solicitors (Amendment) Act,
» The Courts and Court Officers Act, 1995