Faisal Oluwanifemi Sulaimon (An Infant)

[2013] IELCA 13 THE HIGH COURT RECORD NO. 1173 JR BETWEEN

FAISAL OLUWANIFEMI SULAIMON (AN INFANT) APPLICANT AND MINISTER FOR JUSTICE EQUALITY AND LAW REFORM RESPONDENT The background to this Judicial Review application is fully set out in the Judgement of Ryan J. delivered 9 July 2010 – for the purpose of this Ruling such background may be taken as repeated.

Suffice it to say that the basis upon which the Respondent had refused the applicant’s entitlement to a Certificate of Nationality was untenable and this decision was upheld by the Supreme Court on 21 December 2012 on foot of the Respondent’s Appeal.

I have to consider the Applicant’s solicitor’s instructions fee (which includes both the High Court hearing and the Appeal to the Supreme Court) and which is claimed at the sum of €92,250. Mr. O’Donnell has provided me with a breakdown of how this sum is made up and I will return to this. Mr. Quann’s assessment is that the instruction fee should be allowed at no more than a sum in the order of €21-24K (referred to as “the early twenties)”. He has also provided a breakdown showing the assessment at €19,000 but to which he agrees an additional sum should be added to reflect the importance and novelty of the application. In addition I have to consider the allowances to be made in relation to the brief fees of Senior and Junior Counsel.

A preliminary matter, I have been asked to reconsider by Mr. O’Donnell concerns whether the costs attributable to work carried out by the Applicant’s solicitors in the period from 10 February 2009 and 6 October 2009 (items 1 to 12 in the bill) may be properly taken into account as between party and party. In fact, I had ruled on this issue during the course of the taxation hearing, holding that the costs of the Judicial Review proceedings under the terms of both the High and Supreme Court Orders could only run from the date on which a final decision had been made by the Minister and this had occurred on 5 October 2009. I appreciate that the decision in the case turned on two earlier letters of 7 July 2005 and 7 July 2007 under which the Applicant had been granted permission to remain in the State. However, the impugned decision is that of 5 October 2009. I did agree to reconsider this ruling when I had read the solicitors file. I have now done so.

Firstly, this is not a situation, which frequently occurs in tort or breach of contract cases, where the wrong complained of might have a lengthy and detailed history and in respect of which it may be necessary to take instructions and carry out investigations prior to institution of proceedings. In such circumstances the pre proceedings costs are recoverable on the party and party basis.

In the instant case the wrong to be righted only crystallised in the decision of the Respondent of 5 October 2009. Prior thereto, the solicitors were engaged in a review or appeal process on behalf of their client, which, had it been successful, as it ought to have been, no further action would have been required. The solicitors are of course fully entitled to remuneration as between solicitor and own client in relation to such appeal work, but not as between party and party on foot of the Order herein awarding costs to him.

I am reinforced in this view by reason of the fact that it was only subsequent to the Respondent’s impugned decision that a s. 68 letter was issued to the Applicant’s next friend, on 6 November 2009 and this refers specifically to the Judicial Review proceedings and the fact of receipt of instructions to act in respect thereof.

I have heard lengthy submissions on behalf of both parties.

I have come to the conclusion that the instructions fee sought herein at €92,250 is untenable and cannot be upheld.

I will address the breakdown of the work as submitted by each side.

High Court aspect

Mr. O’Donnell for Applicant:

For taking instructions to act (referable

to the issue already adverted to) - (€15,000)

Mr. Quann submits that no allowance can

be made under this heading – I agree for

the reasons outlined.

For consideration of the Judicial Review

proceedings and lodging in Court

list – Mr. O’Donnell assesses €3000, plus

€2000 for attending Court on the application.

Mr. Quann in fact assesses €4000 under this

heading but it includes a sum for taking instructions

in relation to the Judicial Review.

I find that the solicitor did provide instructions to

Counsel and had discussions with the next friend

prior to completion of the leave documentation; however the drafts were, it seems, entirely prepared by Counsel (Senior and Junior).

The drafts were engrossed, the affidavit sworn and the papers were lodged in Court.

I think the sum of €4250 is reasonable to include attendance in Court on the ex parte application.

Mr. O’Donnell assesses €500 for issuing the Motion seeking leave plus a further €1000 for attendance at a for mention hearing and €2000 for considering the Statement of Opposition and a further €1000 for attending Court on another for mention hearing.

Then there is a further €3000 for Discovery work and €1000 for attendance at Court; a fee for considering legal submissions is put at €2500 to cover both sides’ submissions.

Then a further €15,000 is claimed for preparing for the hearing, preparation of brief and care and

management.

In addition a further €15,000 is claimed to cover responsibility and intangible factors.

With further sums of €1500 and €750 respectively for taking Judgement and on the Stay application (Total €63,250).

Mr. Quann suggests that for all work of preparation for hearing including perusal of Statement of Opposition; considering submissions;

Voluntary discovery comprising 4 pages received from

Respondent; for mention dates and preparation

of Brief: €5000.

In essence the submission is that the file does not disclose work on the solicitor’s part which could possibly justify an assessment of €63,250 for this aspect of the solicitor’s work.

I accept, as submitted on behalf of the Respondent, that the extent of documentation received by the Applicant’s solicitor from the Respondent was not heavy and there is no evidence of extensive work under the heading of discovery. It appears that 4 pages of documents were involved. The affidavit as to discovery was not in fact an affidavit of discovery as of course it was sworn by the Applicant’s solicitor and exhibited the documents received from the State.

Apart from the meeting with the Applicant’s father, prior to his swearing the Affidavit verifying the facts, the file disclosed no other consultations with him contrary to what had been claimed in the bill and during the course of taxation.

Mr. Quann submits that there was no evidence of substantial research into legal authorities as claimed. Having read the file, this is indeed the case. The only authorities cited in the High Court submissions relate to the relevant Statutory provisions.

Mr. Quann disputed that the matter at issue could properly be described as complex or onerous but accepted that there was an element of novelty involved. Further, that as a prerequisite to considering an appropriate allowance to cover intangible issues like novelty, the extent of the actual work must be ascertained. In any event both the High Court and Supreme Court considered that a net issue was involved.

There was no documentary evidence of the Applicant’s solicitor having played any substantial role in the creation or consideration of the written submissions in the High Court.

Two comparators: Abdow v Minister for Justice and Bolatiwa v Minister for Justice were opened and I have since read the details. They show overall instructions fees of 18K and 22K respectively: It was submitted that neither supports the fee claimed by the Applicant’s solicitor. It was suggested that both comparators involved much more substantial work than present in the instant case. No comparators have been submitted on behalf of the Applicant.

In my view the appropriate allowance to cover the work of preparation for the hearing in all its aspects, including briefing of Senior and Junior Counsel is €7500, to which I think it reasonable to add €1500 to take into account the importance and novelty elements.

Accordingly the allowance for the instructions fee in relation to the proceedings in the High Court is as follows. Taking instructions; preparation for and

attending at ex parte leave application €4,250

All remaining work of preparation for hearing

including briefing of Counsel €9,000

Attendance at Court on hearing 9 July 2010 €1,500

Taking Judgement €350

Attendance at Court on State’s application

for Stay €500

______

Total €15,600

The Supreme Court Appeal

The Applicant’s solicitor’s assessment of the instructions fee is €29,000 whereas the Respondent assesses it at €6000.

Both parties provided me with their respective breakdowns of how they had arrived at these figures.

The file does not disclose work by the solicitor for the Applicant herein which could justify the measurement of a professional fee of anything even close to €29,000.

I will make no further additional allowance for importance or novelty as these aspects have already been taken into account in the assessment of the instructions fee in respect of the Application in the High Court.

The extent of the work in relation to the Supreme Court Appeal was limited in nature. The Appeal was issued by the Respondent. There was correspondence with the Chief State Solicitor concerning the Applicant’s desire that the matter be given priority in the Supreme Court list culminating in two such applications to that Court. The Respondent’s written submissions were considered in consultation with Counsel; the books of appeal were lodged in the Supreme Court by the Chief State Solicitor. There appears to have been little if any involvement by the Applicant’s solicitor in the formulation of the Applicant’s written submissions; the book of Authorities was prepared by the Chief State Solicitor. The brief, apart from the Judgement of the High Court was substantially the same as in the Court below. There was a relatively short hearing in the Supreme Court which I understand was not more than half a day.

It is usually the case that the majority of solicitor’s fees and the work underlying same has already been undertaken for the purpose of the hearing in the High Court. I am satisfied that such is the situation in the instant case.

I assess the instructions fee at €8000.

Brief Fee

Bearing in mind the matters referred to by Senior Counsel in his explanatory letter and making allowance for the importance and novelty involved, I will allow €7500 on the brief in both High and Supreme Courts with €5000 on each brief for Junior Counsel in respect of which I have also had regard to Junior Counsel’s summary of facts and work done.

Dated the 26th day of September 2013

Declan O’Neill

Taxing Master.