An Appeal from the Determination of the Pensions Ombudsman

THE HIGH COURT [2013] IELCA 2 2009 NO. 203 MCA IN THE MATTER OF THE PENSIONS ACTS 1992 TO 2003 IN THE MATTER OF AN APPEAL FROM THE DETERMINATION OF THE PENSIONS OMBUDSMAN

IN THE MATTER OF SECTION 140 OF THE PENSIONS ACT 1990 (AS AMENDED) BETWEEN BANDON MEDICAL HALL LIMITED APPELLANT AND THE PENSIONS OMBUDSMAN AND TIMOTHY LUCITT RESPONDENTS RULING NO. 2 FOLLOWING HEARING OF SECOND NAMED RESPONDENT’S OBJECTIONS.

My original reserved ruling following upon the taxation of the second named Respondent’s costs is dated 13 November 2012.

The second named Respondent being dissatisfied with the allowance in respect of the instructions fee and certain of the fees of Counsel, carried in objections dated 27 November 2012 followed by written submissions in support thereof dated 25 February 2013. The Appellant’s replying submissions are dated 12 April 2013 and were filed in this office on 15 April 2013. The submissions are contained on the headed notepaper of the Appellant company and signed by one of its directors Mr. Joseph McLoughlin.

The hearing of the said objections took place before me on 29 April 2013. The second named Respondent being represented by Mr. Galligan Legal Costs Accountant on the instructions of Ronan Daly Jermyn Solicitors. Mr. McLoughlin represented the Appellant company.

No issue was raised either at the original taxation of the costs or at the hearing of the objections concerning the entitlement of a director to represent the appellant company nor did I consider that such issue could validly arise in relation to the taxation of costs.

The Instructions Fee - Item No. 158 The instructions fee was claimed in the sum of €38,000 and reduced by me to €18,000.

The essence of the objections are fourfold as follows: i. that the allowance of €18,000 is unreasonable having regard to the nature and extent of the work actually undertaken by the second named Respondent’s solicitors on a party and party basis; ii. that the Taxing Master failed to apply or alternatively to apply properly the principles governing the assessment of the solicitors’ general instructions fee and in particular that the breakdown of work (referred to in ruling no. 1) does not adequately or at all encompass all of the work and effort expended by the Respondent’s solicitors throughout the currency of the proceedings; iii. the Taxing Master was in error in the interpretation and application of Order 99 Rule 37 (22) RSC and in particular Best v Wellcome Foundation [1996] 1 ILRM 34; iv. there was also error in the application of the Courts and Court Officers Act, 1995 and in particular section 27 (1) and (2) thereof in the examination of the nature and extent of the work actually done with particular assertion of a failure to take account or adequate account of the true nature and extent of the work.

The Second Named Respondent’s Submissions The submissions in support of the objections set out and largely repeat at pp 2-10 thereof the sequence of events which are already contained in the bill of costs and indeed are referred to in my ruling no. 1. The following pages up to p.14 set out the principles governing the taxation of costs as between party and party and I will return to these, as necessary at a later stage herein. At para. 4.10 it is specifically asserted that in arriving at my decision I had “placed an over reliance on the apparent disproportionality of the legal costs” to the “amount or value” of the case and by doing so failed to appreciate that the amount was of considerable importance to the second named Respondent who would have found himself in his retirement without the pension that he had always understood would be waiting for him. In essence it was asserted, the sum of money or the value of the case was much greater than €50,295.35.

The Appellant’s Submissions. As might be expected these submissions relate to the disparity between the fees claimed on behalf of the second named Respondent herein and actually paid in respect of the fees of the first named Respondent and with the costs incurred by the appellant company itself. The solicitors’ fees claimed herein are described as outrageous for the reasons outlined at 4(a-h) thereof.

Respondent’s specific arguments Under the heading of the Work undertaken by the second named Respondent’s solicitor there is an assertion that while such work was summarised at pp 3-6 of ruling no. 1 there was a failure to consider certain aspects in the assessment of the instructions fee.

No issue appears to arise in relation to my assessment of the nature and extent of the work up to and including the filing of the supplemental affidavit of the second named Respondent of 5 November 2009. My assessment of the value of such work appears at p.11 of the said ruling and the principal matters taken into account are actually set forth at Items 1 to 7 listed on p.9 thereof and not pp 3-6.

At paras. 5.5 to 5.13 the second named Respondent sets forth the basis of the objection raised in regard to my assessment of the second element of the instructions fee which was assessed at €12,000 of which €4500 related to the jurisdiction issue. It is asserted at para. 5.14 that this assessment constitutes a failure to reasonably take into account the fact that the majority of the work involved in the proceedings and the jurisdiction issue was conducted during this period.

In fact, the principal matters taken into account are to be found at pp 9, 10, Items 8 to 17 and as further explained at pp 11, 12. I will return to this later.

At para. 5.15 it is essentially asserted that there is a lacuna in the ruling in that no allowance has been made for the solicitors’ work during the period December 2010 to March 2011.

There is an assertion, on the one hand that additional work, which relates to attendance at Court on 11 and 25 February 2011 has not been taken into account, and on the other that the solicitor’s mileage charge of €419.76 for attendance at Court on the said date had been disallowed and that the reasons for such disallowance are unknown.

Finally the assessment of the third element of the work, referred to at para. 5.2 is disputed.

The essence of the said Respondent’s objections appear to relate to the following issues.

(i) “Alleged over reliance on the apparent disproportionality of the legal costs to the amount or value of the case.” [See submissions at para. 4.10]

I addressed this issue at p. 13 of my original ruling. Firstly I noted that the second named Respondent’s legal costs accountant had acknowledged that the overall fees claimed in the bill were disproportionate to the amount of the pension at issue.

My decision was not based in any way on this aspect as explained in the very next sentence and thereafter I stated that I had assessed the fee based on the nature and extent of the work necessarily carried out by the second named Respondent’s solicitors. This is, in fact, shorthand for saying that I took into account all relevant criteria having regard to the provisions of Section 27 (1) and (2) of the Courts and Court Officers Act, 1995 and the provisions of Order 99 RSC together with relevant case law. This aspect of the ruling appears to have been overlooked or ignored. This submission has no basis in reality.

(ii) “Failure to appreciate all the work undertaken in relation to the jurisdiction issue raised by the Appellant.” [para. 5.6]

(iii) My assessment of the value of the work in relation to the period from 6 November 2009 up to and including perusal of reserved Judgement dated 21 December 2010, is unreasonable. [para. 5.13] In this regard I had failed to take into account “that the vast majority of the work involved in the proceedings and the jurisdictional issue was conducted during this period.”

In my view both aspects of the submission are untenable bearing in mind that the work which is briefly described at paras. 5.6 to 5.12 of the Respondent’s submissions is in fact outlined in my ruling no. 1, in much greater detail, at pp 4,5 again at pp 9,10 [items 7 to 19] and also at pp 11,12. My ruling fully took into account that the period in question encompassed preparation for the hearing of the substantive together with the preliminary issue. I outlined the work in relation to both aspects at pp 11, 12 of the ruling. In my view the assessment of €4500 as relating to the preliminary issue is fair and reasonable having regard to the extent of the work. Similarly in regard to the substantive issue at €7500. I can see no injustice arising here.

(iv) Failure to take into account work undertaken between December 2010 and March 2011 “for which no fees have been assessed” including error in disallowing the solicitor’s charges for travelling from Cork to Dublin on 11 February 2011 for the hearing of a Costs application relating to the preliminary issue. Other asserted errors at para. 5.18.

The submissions in relation to this aspect arise out of a perception that there is a lacuna in my initial ruling in regard to work undertaken between December 2010 and March 2011.

In my view such perception is at best, more apparent than real and has no basis in fact.

As is apparent at p. 12 of my ruling the sum of €12,000 assessed in respect of the preceding period took into account the perusal of the Court’s reserved Judgement delivered in Court on 21 December 2010, but not, in fact, received by the solicitor until 6 January 2011. This is clear from email of 5 January addressed to town agents. The Judgement had not been received as of that date. The email of 6 January addressed to Counsel attached the Judgement. According to the time records the solicitor read the Judgement on 6 January 2011.

Accordingly, at best, the Respondent’s submissions can only relate to the period from 7 January to March 2011.

The submission implies that work in the month of December had been overlooked by me. This is clearly incorrect.

It does not in fact appear to be the case that any further work on the file was carried out during January 2011.

The work, which was quite limited, during the month of February 2011, is in fact referred to at p. 10, item 19, of my ruling. The reference there to “attendances at Court (Counsel only)” was intended to reflect that I was disallowing the solicitor’s travelling charges for attending Court on 11 February when it was anticipated that the issue as to the costs of the preliminary hearing would be determined. I have a clear recollection that during the course of the initial taxation hearing there was discussion in relation to whether such charges should be recoverable as between party and party. I outlined my view, with which Mr. Galligan did not agree, that (unless in exceptional circumstances) there was really no necessity for a solicitor to travel from Cork for such an application. Any additional instructions which it might be necessary to provide to Counsel prior to any such hearing could be given by email or telephone. It is usually the function of Counsel to formulate and advance the appropriate arguments.

I have reconsidered the solicitor’s file in relation to this aspect. I can find no evidence of any communication between the solicitor and Counsel prior to the application on 11 February 2011 apart from the solicitor’s email to Counsel on 6 January 2011 attaching the reserved Judgement of Laffoy J. and in which the adjournment of the matter, for mention, to 11 February is referenced, with the notation “It might be appropriate to raise the costs issue at that time”. The next matter on file is a letter of 10 Feburary 2011 addressed to the Applicant’s solicitors enclosing a copy of the unapproved Judgement, noting the matter being listed for the following day in order to assign a new date for hearing and stating “our instructions are to seek an Order for Costs, associated with the preliminary application, on this return date.”

The Respondent’s submission that the solicitor was on Notice of the Applicant considering appealing the Judgement appears to be incorrect. This was not mentioned until the matter was mentioned in Court. Even if the solicitor had been on Notice, it would not constitute a good reason for the allowance of travelling charges against the Appellant. These submissions, it appears to me are inaccurately slanted in the Respondent’s favour and take little or no account of the reality of the situation.

In addition, as I believe was mentioned by me during the taxation hearing, I had doubts whether travelling expenses were allowable. Having considered the notes to items 23 and 24 in conjunction with item 26 to Appendix W RSC it is clear that a solicitor’s travelling expenses to Court on the hearing of a Special or Summary Summons or the hearing of a Motion before the Court, are not allowable.

Accordingly, the costs of travelling should not be allowed in the circumstances arising herein. I had reserved ruling on this pending my consideration of the matter but had allowed the travelling expenses relating to the said substantive hearing.

It now appears to me that the said notes to items 23 and 24 may constitute a statutory prohibition against the allowance of travelling expenses in relation to the hearing of the Motion and the preliminary issue, both of which were before the Court on foot of the Applicant’s Notice of Motion dated 20 August 2009. However, as the relevant allowances were not the subject of objections and have been included in an Interim Certificate of Taxation, they must stand.

The only other work in February 2011 evident on file relates to brief correspondence as to agreeing an adjournment of the hearing. It is inconsequential in terms of costs but there was no failure to take it into account.

As to work claimed to have been carried out during the month of March 2011, I can find little evidence on file. There was brief correspondence covering the adjournment of the hearing, at the volition of the Court. There is no evidence of any preparatory work for the hearing having been undertaken. In reality all such work had already been done. The matter was not reactivated until receipt of a letter dated 23 May 2011 from the Applicant’s solicitor. It appears therefrom, that there had been discussion and correspondence between the Applicant’s and the first named Respondent’s solicitor, to which the second named Respondent was not privy. In any event, this brings the matter to the third period, to which the Respondent refers in his submissions.

(v) The assessment of €2500 for the remainder of the work, from March 2011 to conclusion is unreasonable. This period is referred to at pp 10, 11 [items 20 to 23] and p. 12 of my original ruling and, in fact, reference is made to the correspondence, already alluded to herein, which took place in March 2011. Thereafter nothing happened until 23 May 2011 and again this is clearly referred to at p. 12 which cited, in particular the second named Respondent’s solicitors’ unhappiness at having been apparently excluded from settlement negotiations between the Applicant’s and the Pensions Ombudsman’s respective solicitors.

The only work of any substance in May 2011 took place between 23 and 25 May which culminated in receipt of a request from the Appellant’s solicitors to the second named Respondent’s solicitors for a breakdown of their costs and outlays, including the fees of Counsel.

The file shows that in this period the second Respondent’s solicitors wrote to both the Appellants and the first named Respondent’s solicitors by way of protest at their client’s exclusion from settlement negotiations. There was a telephone attendance on the client when it was explained, inter alia, that the likely outcome on the return date being 25 May 2011 would be the application being struck out with costs awarded to him. His solicitors made it clear that they could not offer tax or investment advice and that such advice should be separately procured.

Both the first and second named Respondent’s solicitors together with Counsel had, according to attendance note of 24 May 2011, reached a concensus that the Appellant’s case was doomed to failure, having regard to admissions made in open correspondence. Further that a strike out of the appeal with costs would not preclude negotiations after the fact, with the possibility of obtaining an outcome of more benefit to the client than the current Order of the Ombudsman (being the document under appeal).

Accordingly, the first and second named Respondents solicitors were insistent on the matter proceeding on the following day. The Appellant wanted an adjournment.

Two solicitors and the second named Respondent travelled from Cork for the hearing. It was accepted during the original taxation hearing that a case could only be made for the attendance of one solicitor. No claim was made for the second named Respondent’s expenses as clearly he had no evidence to give at the hearing.

It transpired that, through no one’s fault the case could not proceed. Negotiations took place. It is apparent from Junior Counsel’s letter of 25 May that the Appellant’s solicitors wished to settle the entire matter, inclusive of costs and this resulted in a breakdown of the talks.

These talks, in reality had nothing to do with the appeal herein but were related to the financial consequences of the anticipated dismissal of such appeal. Such consequences were not material to the issue under appeal.

While the solicitor’s travelling charges have been allowed and cannot now be interfered with I must consider whether the professional fees attributable to such, and the earlier attendance in court, are amenable to reconsideration by me in light of item 26 and the notes to items 23 and 24 Appendix W RSC. I will return to this later. The circumstances relating to the ultimate settlement of the matter are referred to at p. 12 of my ruling. I held that none of the work relating to the procurement or consideration of financial advice could be taken into account in assessing the instructions fee. This aspect has not been disputed in the objections herein.

Accordingly, I will hear further submissions in relation to whether the professional fees attendant to the solicitor travelling to and from Court can at this stage be disallowed. In such event the instructions fee will obviously be further reduced as I do not consider the comparator proffered on behalf of the Respondent to constitute a like for like comparison.

The said comparator concerned the hearing of a Special Summons by way of appeal by the Minister for Justice Equality and Law Reform against the determination of the Pensions Ombudsman in favour of the Notice Party’s complaint that he had been wrongly excluded from the benefit of a special pension pursuant to Article 4 of the Garda Siochana Pensions Order 1925. It is unnecessary to go into the background. The matter was put forward in the bill of cost as being of considerable importance, having wide implications for the State and members of An Garda Siochana, if the decision was upheld by the Court. The instructions fee at €49,000 was not taxed but agreed between the parties. I do not know how it was arrived at. It strikes me that the fee was reflective of some exceptional work which is not apparent from the bill of costs. In my original ruling I did not regard it as a useful comparator and I adhere to this view.

While time charges may be taken into account, where appropriate, as between party and party, it would be completely inappropriate to assess such costs on a minute by minute basis, according to the time shown on the relevant records. The overall time expended and its reasonable costs may be weighed by me against my own assessment of the work.

The Fees of Counsel Objections are raised in relation to the allowances in respect of the following items:

€ €

95 Brief Fee on substantive issue

(to include all attendances) - 6250 5000 Allowed

96 Brief fee (preliminary issue on

jurisdiction) - 2500 1500 Allowed

101 Written submissions - 500 Disallowed

120 Consultation - 300 Disallowed

127 Taking Judgement - 400 200 Allowed

129 (Apparent error) - -

130 (Apparently omitted in error) Adjournment - 250 Disallowed

142 Updated brief - 2000 Disallowed

The grounds and reasons set forth in the objections dated 20 November 2012 are generic in nature being referable to each of the items referred to above. Such methodology does not accord with Order 99 Rule 38 (1) RSC. The grounds and reasons specified, for instance in relation to the assertion that a refresher fee was payable herein and that a separate fee for legal submissions should have been allowed do not sit well with the assertion that in considering the fees the Taxing Master should have had regard to the number of attendances in Court by Counsel or indeed in reference to the disallowance of a consultation fee and in respect of which no mention whatever is made.

The written submissions subsequently filed in support of these objections also deal generically with all items objected to. It appears that the following items can be isolated therefrom.

The Brief Fee The Respondent takes issue with my decision, in considering the assessment of the appropriate brief fee as between party and party, not to take into account any attendances in Court by Counsel when the case was in the list for mention or for hearing.

The number of times when this occurred is stated to be “numerous”. The applicable dates appear to be as follows:

9 and 23 November 2009; 14 December 2009; 18 January 2010;

8 February 2010; 11 May 2010; 21 and 22 July 2010; 21 October 2010;

12 November 2010; 11, 25 February 2011; 4 March 2011; 8 April 2011;

10 May 2011; 25 May 2011 and 23 June 2011.

In relation to my observation that ideally brief fees should be agreed in advance, the answer proffered is that had that occurred provision would have been made for work necessarily required which would have included days such as those referred to above. In my experience the making of such provision is not in any way usual.

The necessity of Counsel to attend at Court on the days in question is emphasised with particular reference to the days on which the Respondent’s solicitor did not travel from Cork and it is suggested in those circumstances the requirement for Counsel’s attendance was even greater “the alternative being to ignore one’s responsibilities to the client, the Court and one’s colleagues.”

In relation to the adjournment date in respect of which Counsel marked a specific fee, essentially the same point is made.

The submissions assert that my decision to disallow, presumably the specific fee and notional fees as an element of the brief fee relating to such attendances, was “unreasonable insofar as it is submitted that any professional person, including barristers, ought to be reasonably and fairly paid for time necessarily spent in relation to any particular matter”. It is unreasonable, it is argued, to expect the second named Respondent to discharge such fees which were not only reasonably and properly incurred, but unavoidable.

At para. 6.7 the assertion is essentially as heretofore outlined with the addition that particular regard should have been paid to the fact that negotiations were conducted between the parties on 25 May 2011.

It is asserted that the net effect is that I have unjustly penalised the second named Respondent.

Further that Counsel’s brief was spent on 29 October 2010 and accordingly a refresher fee should have arisen or some fee in the nature of a refresher fee should have been applied in relation to 25 May 2011 when the case did not commence. [See para. 6.9]

The essence of this Respondent’s submissions may be summarised by reference to an extract from para. 6.4 thereof as follows:

“In circumstances where it is necessary for a party to be represented in Court then it is believed only reasonable and proper that the expense incurred ought to be recoverable on a party and party basis as a matter of basic principle.”

The first disbursement to be considered is the brief fee of €6250 on the substantive issue and in respect of which I allowed €5000.

Two issues arise:

(i) whether the brief was ‘spent’ as of 29 October 2010;

(ii) whether, in assessing the appropriate fee I should have taken into account the dates on which the case was in the list and adjourned or not reached.

If the brief was, in fact, spent on the date asserted namely 29 October 2010 then the further dates subsequent to this in respect of which it is claimed should have been taken into account, namely 12 November 2010 and 8 April, 25 May, 23 and 28 June, 2011 could not possibly be taken into account.

In fact, a separate brief fee is claimed in the bill of costs for 10 May 2011 although it is characterised in the Respondent’s submissions as a refresher fee.

In reality, the brief fee could not have been spent on 29 October 2010 as that was the date on which, although the substantive issue was listed for hearing, only the preliminary issue was heard and in respect of which, for that same date, a separate brief fee was marked by Counsel. This fee is also the subject of objections and I will return to it. I noted in my original ruling at p. 11 that the submissions exchanged by the parties covered both the jurisdiction and the substantive issue. This was also noted at pp 13, 14 in the context of considering the brief fees on both issues and for written submissions.

Far from being spent, Counsel’s brief carried over to the ultimate conclusion of the matter.

I do not think it is permissible for a Taxing Master, in assessing the appropriate fee to be allowed on the brief, on the party and party basis, to take into account the time undoubtedly spent by Counsel in attending Court to secure adjournments or when a case is not reached in the list. My reasons were set out in detail in Sweeney v Lindat Ltd. & Ors., Ruling, 28 March 2012 at pp 10, 11 as follows:

“Mr. McMahon says the fee includes an element relating to counsel having to be available during the period when the action was listed but not reached and counsel would have had to prepare a second time for the trial.

I do not think that these are factors which should influence an allowance on a party and party basis. It is suggested that Section 27 of the Courts and Court Officers Act, 1995 mandates, as part of the consideration of the ‘nature and extent’ of the work that the listing situation and the consequent additional work on the part of counsel should be taken into account.

It is usual that counsel is in receipt of the brief in advance of the hearing and in most instances well in advance thereof. Ideally the brief fee should be agreed in advance of the trial (as is the case in most commercial litigation).

Counsel are briefed as advocates, expert in the law and hold themselves out as available to take on the prosecution or defence of any matter in respect of which they accept a brief. This includes being available to undertake the assessment of the brief, carry out any necessary legal research and being available to represent the client on the date and at the time designated by the court. It is a hazard of the barristers’ profession that cases may not be reached on the date originally assigned for hearing but a brief fee is not intended to take into account anything other than the ‘nature and extent’ of the work arising in respect of issues raised in the pleadings or referred to in the brief. The fee has never been regarded as including a contingency element based upon ‘waiting time’ and I do not believe that Section 27 of the Act can be construed as bearing such a meaning more especially when the fees are taxed on the party and party basis.

It is true that the former test referred to by Gannon J. in Dunne v O’Neill [1974] IR 180, relating to ascertaining the market rate as to the appropriate brief fee has been somewhat altered in that the Taxing Master now under the 1995 Act, has a duty to ascertain the nature and extent of the work of counsel. This may mean that market rates, which still exist of course, may be increased or decreased as necessary dependent upon the nature and extent of the work apparent in any case. Section 27 however, refers to taxations both as between party and party and solicitor and client. As cited earlier the minimum amount allowable must be measured in this case and the fee can only relate to the brief actually received by counsel and work undertaken in relation to it. If waiting and additional preparation time is to be allowed I believe this is a matter of policy and should only be altered by a specific and explicit statutory provision to such effect.”

It has not been the practice as far as I am aware, over the past 100 years, to allow such charges. Sweeney v Lindat related only to the situation where the case was not reached in the list. In my view S. 27 of the 1995 Act cannot be construed as permitting the time spent on non contentious adjournment applications as being a reckonable constituent of the brief fee nor should the section, in my view, be construed as permitting the allowance of separate fees for attending any non contentious ‘for mention’ applications. I do not think that on any of the relevant dates that case progression hearings took place although this is referred to in Counsel’s fee note. This is not mentioned in the bill of costs nor were such hearings referred to at the taxation or the objections.

If an adjournment application arises which involves real contention between the parties, the Court may, if requested, consider whether a separate award of costs is appropriate. In my view there is no automatic right to recovery of such fees as between party and party. A question of “ignoring one’s responsibilities” simply does not arise. In my view, the indemnity principle cannot apply to such fees in the absence of the Court certifying their allowance.

In my view the fee allowed at €5000 is fair and reasonable. The Applicant’s Counsel marked her fee at €3000 and if all other fees are taken into account her cumulative fees amount to €4250. I do not accept the assertion made to me on behalf of the Respondent that these fees were kept on the low side. In fact, the brief fee in the Respondent’s comparator case, which Mr. Galligan accepted carried far reaching implications, was marked at €4500 together with separate fees for legal submissions at €1850 and other fees bringing the total to €7000.

I disallow the objection in relation to this item.

Brief on preliminary issue I duly considered the composite brief which covered all issues. In my view the fee measured at €1500 as between party and party is fair, reasonable and proportionate to the work undertaken by Counsel.

I disallow the objection.

Written Submissions The work in this regard is fully recognised, in my view, in the cumulative allowance of €6500. The outcome of both aspects of the Appeal revolved around legal argument. The second aspect was ultimately settled. The fees allowed take into account the legal research involved.

Consultation No case has been made out either by way of written or parol submission for the allowance of this item. I disallow the objection.

Taking Judgement No case has been made out either by way of written or parol submission for any increase at this item.

Adjournment fee €250 This issue been dealt with in the course of considering the brief fee.

Updated Brief I have also dealt with this item in reference to the brief fee. It is now claimed to be in the nature of a refresher fee. It cannot constitute either an additional brief or a refresher. Only one brief fee is allowable on the substantive hearing: Spring v Minister for Finance, High Court, 29 May 2000 (Unreported) at p. 25. Unlike the circumstances in that case which involved a multiplicity of issues to be taken into account, the character of the brief in the instant case never changed.

The objection is disallowed.

I will list the matter for mention on 7 October 2013.

Dated the 31st day of July 2013

Declan O’Neill

Taxing Master.