THE Supreme Court yesterday dismissed an appeal by Independent Newspapers p.l.c. over brief fees allowed by a taxing master of the High Court to three barristers who represented a TD in a libel action which was settled.
In October 1993, the High Court rejected a claim by Independent Newspapers that the brief fees allowed were excessive. The Supreme Court affirmed the High Court decision.
Mr Justice Kinlen in his High Court judgment said, as it stood, the law on fees was "what the market will bear." The High Court had been asked to overturn the taxing master's decision allowing brief fees of £7,350 each to two senior counsel, Mr Adrian Hardiman and Mr Paul Gilligan, and £4,900 to junior counsel Mr Frank Callinan. They had represented the Louth Fine Gael TD, Mr Brendan McGahon who sued Independent Newspapers and journalist John Waters for libel.
Mr John McBratney SC for Independent Newspapers, said the action arose out of two different publications, one in the Irish Independent in October 1987 and another in the Sunday Independent in November 1988. The case came for trial on February 5th, 1992, but was settled before the trial started for £25,000 and without an apology or admission of liability, plus costs.
The bill of costs was delivered on November 6th, 1992, but was challenged before a taxing master, Mr James Flynn, who allowed the fees.
Independent Newspapers said it had been submitted that Mr McGahon's solicitor agreed the brief fees with counsel and with Mr McGahon before the hearing.
In the appeal, Independent Newspapers claimed the judge erred in law and in the exercise of his discretion in failing to take any or any proper account of the discrepancy between the fees marked by counsel for the defendants - one senior at £2,00 and one junior at £1,400, totalling £3,500 - and counsel for Mr McGahon - two seniors (£7,350) and one junior (£4,900), totalling £19,600.
It was also submitted that account had not been taken of the fact that the fees of counsel for Mr McGahon had not been discharged by his solicitor by the taxation ruling on March 18th, 1993, notwithstanding that on February 24th, 1992, the defendants had paid to the plaintiff's solicitors the agreed damages of £25,000.
Giving the Supreme Court judgment, the Chief Justice, Mr Justice Hamilton, said the taxing master had said when dealing with the question of counsels' briefs that Mr McGahon's solicitor had acted reasonably, carefully and prudently.
He said there was only a very small percentage of cases where counsels' fees were discharged on being presented with the brief or before taxation or recovery of fees from an unsuccessful defendant.
Mr Justice Hamilton said the complexity of defamation actions, had been considered by the taxing master in determining the level of fees, as was the fact that agreement had been made between counsel and solicitor before the hearing of the action.