LAURA GILL V DOE AND WILLIAM DUFFY TRADING AS 720 BAR

Londonderry District Judges Court
24 February 2004
Judge Keegan

This case raised the question of the Plaintiff's solicitors' entitlement to charge engineer's fees. The case arose out of an accident on 29 December 1998 when the Plaintiff claimed to have tripped and fallen as a result of defective work carried out at a footpath at Harvey Street, Londonderry, outside the second named Defendant's premises. The case was settled on the morning of trial in the sum of £1,250 against the second named Defendant only. The Plaintiff's solicitors subsequently submitted a note of their costs which included fees for a consulting engineer for both inspecting the accident location and attending the trial. The fees charged were £810.75. They had also charged fees for a photographer for taking photographs and attending the trial.

Whereas the photographer's photographs had been served, no photographs from the engineer had been served, contrary to Order 24 of the County Court Rules.

The Plaintiff's solicitors had a Legal Aid Certificate limited to obtaining an engineer's report. We had previously indicated that we did not see the need for expert engineering evidence in a case of this nature and would object to the cost of any such expert. We cited the case of Gilmore v Smyth [1999] 3 BNIL where Judge Harte Q C had said that in allowing witness expenses under Order 55 Rule 6, the County Court Judge applies the principles of the Taxing Master in taxing costs. The test for deciding whether a disbursement such as the fee for an expert's report should be allowed against the Defendant is whether the cost was necessary or proper i.e. reasonably incurred, for the purpose of attaining justice or for enforcing or defending the rights of the party.

The matter was referred back to District Judge Keegan who ruled that in the circumstances he would only allow 50% of the engineer's fee. He was prepared to allow 50% because the requirement to obtain an engineer's report had been imposed on the Plaintiff's solicitors by the Legal Aid Department.