WHY AND WHY AREN’T COUNSELS’ FEES RECOVERABLE
This is a question with often perplexes solicitors and barristers alike.

The two basic guidelines are ‘necessary’ and ‘de minimis basis’.

‘Necessary’ arises from Order 99 of the Rules of the Superior Courts.

Order 37 rule 18 states:
On every taxation the Taxing Master shall allow all such costs, charges and expenses as shall appear to him to have been necessary or proper for the attainment of justice or for enforcing or defending the rights of any party, but, save as against the party who incurred the same, no costs shall be allowed which appear to the Taxing Master to have been incurred or increased through over-caution, negligence or mistake, or by payment of special fees to counsel or special charges or expenses to witnesses or other persons or by other unusual expenses.

‘De minimis’ arises from the case of Attorney General (McGarry) v. Sligo County Council [1991] 1 IR 99.

Necessary means that the work had to be done in order to prosecute or defend the action. De Minimis means a party seeking his costs is only entitled to the bare essentials required to conduct the litigation.

So, how does this apply to Counsels’ fees?

It is well established that Counsel is entitled to recover a fee for drawing the initiating writ (Plenary Summons. Personal Injury Summons, etc.)

Counsel will recover fees for drawing the Endorsement of Claim, but not for the repetitive elements of a Personal Injury Summons. Counsel will not recover fees for drawing an Affidavit of Verification, for general advices, and for drawing Replies to a Notice for Particulars which are factual in nature only.

As a solicitor, you are expected to clearly and concisely instruct Counsel. Counsel should be in a position to easily extract the salient facts and thereafter draft the initiating Summons to address matters of law, negligence, etc. This is why the fees allowed or so limited for Counsel. It is envisioned by the Taxing Master that the solicitor will be play a pivotal role in drawing the initiating writ.

Most affidavits are factual in nature and therefore are within the remit of a solicitor to draw. Again, Counsels’ fees recoverable are limited on the basis that the solicitor has taken the lead on drawing any such affidavit.

Counsels will not recover fees for drawing an Affidavit of Verification, a basic Notice of Motion (judgement in default) or a factual Grounding Affidavit. This is because a solicitor is capable of doing this work and fees are recoverable on a party and party basis on a de minimis basis.

Counsel may recover fees for an Affidavit of Discovery where the work surrounds determining whether or not documents were discoverable and addressing issues of privilege. The question will be asked if it was necessary when deciding this.

Counsel will not recover a fee for reading through the various potentially discoverable documentation.

A major issue that often arises in party and party costs in the question of the recovery of Counsels’ Brief Fee.

In summary, following a number of decisions by the Taxing Master, the guideline for recovery of brief fees appears as follows:
1. That Counsel has been given a full sent of papers and instructions in advance of hearing.
2. That the matter has been given a listing/hearing date.
3. That the matter was likely to be reached on that listing/hearing date.
4. That the listing/hearing date is within approximately a month from the briefing date.



If all of the 4 above conditions are not met, a Taxing Master is likely to allow for only on Brief Fee, and that Brief Fee will be viewed as a settlement brief as opposed to a trial brief.

If all of the above 4 conditions are met, the next question will be whether or not it was necessary to brief multiple Counsels.

In recent times, I successfully recovered in a low quantum defamation case brief fees for two Senior Counsels and one Junior Counsel. At the same time, in a very high quantum medical negligence case, brief fees were allowed in taxation for two Senior Counsels and one Junior Counsel. If you believe it is necessary to instruct multiple Counsels, you will have to justify this decision. Core to this will be the directions in Senior Counsel's Advice on Proofs. If you should instruct multiple Counsels, it is important that each Counsel raise and individual brief fee. Otherwise, you will be denying your client the chance to recovery all of the brief fees on a party and party basis.