Marshall v Berndt (No 2) (Ruling as to Costs)
[2011] VCC 1421
•2 December 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES LIST - GENERAL DIVISION
Case No. CI-08-01215
| NERISSA MARSHALL | Plaintiff |
| v | |
| PETER KURT BERNDT | Defendant |
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| JUDGE: | HIS HONOUR JUDGE PARRISH |
| WHERE HELD: | Melbourne |
| DATE OF COSTS ARGUMENT: | 7 April 2011 |
| DATE OF RULING: | 2 December 2011 |
| CASE MAY BE CITED AS: | Marshall v Berndt (No 2) (Ruling as to Costs) |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 1421 |
| RULING AS TO COSTS |
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Catchwords: COSTS – plaintiff largely unsuccessful in her claim – whether there should be an order for costs in favour of the plaintiff – Calderbank offers made by defendant – whether rejection of such offers “are reasonable” – Rule 63A.02, 63A.04 and 63A.24 of the County Court Civil Procedure Rules 2008 – apportionment of costs – whether two counsel appropriate for the defendant.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M H Whitten | Adams Maguire Sier |
| For the Defendant | Mr D J Wallis | Hall & Wilcox |
| HIS HONOUR: |
Preliminary
1 On 7 April 2011, I entered judgment for the plaintiff in the sum of $5,000.
2 The Reasons for Judgment had been circulated to the parties at an earlier date to allow for submissions to be made in relation to costs on 7 April 2011.
3 On that day, both Counsel for the plaintiff and the defendant made submissions on the issue of costs. Because of various issues raised in the course of argument, both parties sought to tender further material in support of their respective arguments.
4 On the part of the plaintiff, such material consisted of:
(a) An affidavit of Vincent John Sier sworn on 6 April 2011 (“Sier’s first affidavit”)’ (b) Affidavit of Vincent John Sier sworn on 12 May 2011 (“Sier’s second affidavit”); (c) Further written submissions on behalf of the plaintiff dated 13 May 2011 in response to the defendant’s submission on costs. 5 The defendant sought to rely on:
(a) Written submissions dated 4 May 2011 and an advice from Grace Costs Consultants (in response to Sier’s first affidavit); (b) Further written submissions in relation to costs dated 20 May 2011 (in response to Sier’s second affidavit). 6 This Ruling determines what entitlement the plaintiff and/or the defendant may have to costs in this proceeding.
The Proceeding
7 In this proceeding, the plaintiff sued her long-term residential neighbour, the defendant, for damages in relation to alleged tree root and ivy encroachment and poisoning of various plants and fish located in her backyard.
8 The proceeding concerned claims made by the plaintiff as set out in what is referred to as the Second Further Amended Statement of Claim dated 29 April 2010 which pleads two causes of action, each of which relies on the torts of nuisance and negligence.
9 The first cause of action, concerns allegations of tree roots and shrubbery emanating from the defendant’s property caused damage to both external and internal areas of the plaintiff’s property, with the claimed costs of rectification being $95,700.00 (“the tree root encroachment claim”).
10 The second cause of action concerned allegations that the defendant applied herbicides and/or toxic chemicals between late 2002 and in about 2009 which spread to and contaminated the western side of the plaintiff’s property, causing damage and destruction of plants, with a claim said to be valued at $229,000.00 and the loss of some common gold fish and two hybridized fish valued at $1,000.00.
11 The defendant denied any liability in relation to both claims.
12 The proceeding was initially issued on 14 June 2001 by the plaintiff and her mother (who subsequently died) in the Magistrates’ Court, alleging:
(a)
that trees, ivy, vines and creepers emanating from the defendant’s property “penetrated the land” in the plaintiff’s property “since early 1996” causing damage to the dwelling of the plaintiff and the brick paving in the plaintiff’s property. Particulars of loss were said to be $660.00 for restumping, $1,050.00 for repair of the brick paving and $1,886.00 for the rectification of resultant damage;
(b)
that a Notice to Fence pursuant to the Fences Act 1968 was served on the defendant by the plaintiff on 16 October 1998 and that no agreement had been reached between the parties in relation to such fence. The sum of $1,512.54 was sought for the cost of a replacement fence;
(c)
the ivy and creepers emanating from the defendant’s property entered the plaintiff’s property causing damage to aquatic tanks and various plants and fish which were contained in such tanks, and that the defendant on numerous occasions had ignored the complaints of the plaintiff. The particulars of that loss were said to include the sum of $2,537.00 for removal and repair of aquatic tanks; $8,775.00 for replacement of stocked plants; $1,250.00 for replacement of breeding fish; $5,850.00 for loss of sales on plants per annum; and $500.00 for loss of sales of fish per annum.
13 On or about 9 January 2006, the Particulars of Claim in the Magistrates’ Court were amended by alleging:
(a)
that not only had the defendant created a nuisance but also he was negligent in permitting the trees and ivy to encroach on the plaintiff’s property;
(b)
that the defendant failed to take any or any adequate action to prevent or abate the nuisance until about 15 April 2002 when he engaged “Peter James Tree Services and Stump Removal” to remove certain trees from the defendant’s property;
(c)
that such activity resulted in “large quantities of green sap, sawdust and chainsaw oil” being deposited on the plaintiff’s property and causing contamination of aquatic tanks which house plants and fish;
(d)
that the defendant had breached an agreement for the replacement of a fence;
(e)
that the particulars of the cost of the resultant losses were $660.00 for restumping; $9,650.00 for consequential building damage; $4,840.00 for repairs to paving; $6,100.00 for repairs to the tropical house; $5,500.00 for repairs to aquatic tanks; $13,680.00 for rectification of soil subsidence and cleaning tanks; $1,840.00 for emergency repairs and access heating overheads; $25,900.00 for importation of replacement plants from Europe; $400.00 for importation of replacement plants from the USA; $4,850.00 for plant quarantine; $4,950.00 for importation of replacement fish; $250.00 for replacement of local fish; $6,700.00 for fish quarantine; and $1,520.00 of transit charges for fish importation.
14 On 17 March 2008, the Magistrates’ Court proceeding against the defendant was uplifted to the County Court, and by leave of this Court on 11 April 2008, an Amended Statement of Claim was filed by the plaintiff. The substantial change in such Amended Statement of Claim was the joinder of Peter James, who performed the tree removal work on or about 15 April 2002 (and possibly 25 April 2002). James was alleged to have performed such work negligently, being a cause of the damage caused by the plaintiff. It is to be noted that the costs to rectify any damage did not alter, although it was asserted that further particulars of loss and damage would be provided prior to trial.
15 Leave was granted to the plaintiff to further amend her Amended Statement of Claim by order of this Court on 9 October 2009. In particular:
(a) the further amendments included the addition of paragraphs 10A-10C, which is the essence of the poisoning claim. In particular, paragraph 10B alleges: “Between late 2002 and the present, and in breach of the aforesaid duty of care, the first named defendant applied or caused to be applied herbicides and/or toxic chemicals negligently and without any or any proper regard for the safety of the plaintiff or her property which spread to and contaminated the plaintiff’s property and thereby caused or permitted to be caused a further nuisance.”
(b)
the cost to rectify the damage allegedly caused by the tree root encroachment claim was now said to be $95,700.00 based on the expert report dated 30 July 2009 from Mr Edmund D’Cruz, quantity surveyor;
(c)
the claim against the defendant and Peter James in relation to the tree cutting and pruning on 15 April 2002 was said to be $154,648.00, being for loss of fish due the contamination of the tanks;
(d)
the claim against the defendant in relation to the poisoning claim was said to be $278,461.75, all of which was due to loss of plants, save for $1,000.00, being for common goldfish and two hybridized fish.
16 Part of the amendments brought about by the Second Further Amended Statement of Claim for which leave was granted to the plaintiff to file on the first day of the hearing of this proceeding, involved the deletion of any claim against Peter James. I was informed from the Bar table that any claim against him in respect to the tree cutting on 15 April 2002 had been resolved.
17 The proceeding ran over twenty-two days of evidence and submissions.
Basis of the Judgment
18 I made findings that there was tree root encroachment from the defendant’s property which caused damage to the paving on the western side of the plaintiff’s property and some minor damage to the so-called “tropical house” and “garden shed” situated in the backyard of the plaintiff’s property. I also made findings that a cause of such damage was the negligence, or alternatively, a nuisance committed by the defendant.
19 Based on various opinions before me, I found that the cost to rectify such minor work to be $5,000.00.
20 Although I found that the north-west corner of the plaintiff’s residence had subsided, I was not satisfied, as a matter of probability either by way of direct evidence or inference, that tree root encroachment was a cause of such damage.
21 Accordingly, in relation to the tree root encroachment claim, the plaintiff was awarded $5,000.00.
22 I was far from satisfied, either on any direct evidence or indeed by inference, that the defendant had a liability to the plaintiff in respect to the poisoning claim.
Some Comments about the Proceeding
23 Although the plaintiff failed in establishing as a matter of probability that tree root encroachment from the defendant’s property caused subsidence in the north-west corner of her house, I do consider that such a cause of action had an arguable basis and could not be characterised as hopeless. Of course, the plaintiff had some limited success in relation to damage to the outbuildings in her backyard.
24 The majority of the expert witnesses who gave evidence in the proceeding related to the tree root encroachment claim. In this sense, such expert witnesses gave evidence either in respect to the extent of tree root encroachment and/or the cost of rectification of such damage.
25 I consider that an evaluation of the evidence available to the plaintiff in respect to the poisoning claim would suggest that such claim was bordering on hopeless.
26 The trial extended over a lengthy period of time and did involve legal rulings brought about largely by the defendant objecting to the admissibility of certain evidence or alternatively, seeking to admit certain evidence. The plaintiff was cross-examined for a long period of time and I came to the view that a forensic decision was made by those acting for the defendant that it was a perceived advantage that the more I saw of the plaintiff the more likely I would find her to be an unreliable witness. Part of this process also involved, as I have already indicated, the defendant seeking to lead evidence about other dealings undertaken by the plaintiff, no doubt with a view to undermine her credibility and reliability.
27 In the Judgment, I made an express finding that I did not accept the plaintiff as a wholly reliable witness and approached her evidence with great caution, seeking corroboration of her evidence from other sources. I also found that the defendant was essentially a witness of truth.
Submissions of the Parties
28 The defendant submitted:
(a) Notwithstanding the judgment for $5,000.00, such result was a Pyrrhic victory on the part of the plaintiff and that the plaintiff should pay the defendant’s costs. Counsel relied on the decision of Carolia Pty Ltd & Ors v Crompton & Ors,[1] a decision given on 28 May 2010 by Windeyer AJ; (b) Further, the defendant relies on two so-called Calderbank Offers: [1] [2010] NSWSC 549
(i) by letter dated 23 January 2007, the defendant offered to pay the plaintiff $23,000.00 all in; and
(ii) by letter dated 28 August 2009, the defendant offered to pay the plaintiff $33,000.00 including legal costs;
In such circumstances, the defendant submits that the plaintiff did not accept such offers and the defendant is entitled to a special costs order for indemnity costs from preferably the date on which the first Calderbank Offer was received; or alternatively, the date on which the second Calderbank Offer was received.
(c)
In general, the defendant also relies on Rule 63A.24 of the County Court Civil Procedure Rules 2008 (“the Rules”) which states:
(1) Where in a proceeding for debt or damages the plaintiff recovers by judgment or otherwise an amount (exclusive of costs) not exceeding one-half of the amount of the jurisdictional limit of the Magistrates' Court in a civil proceeding (at the time the proceeding commenced), the plaintiff shall, unless the Court otherwise orders, be entitled only to the costs to which the plaintiff would have been entitled if the plaintiff had brought the proceeding in the Magistrates' Court less an amount equal to the additional costs properly incurred by the defendant by reason of the proceeding having been brought in the County Court instead of the Magistrates' Court, but shall not be required to pay to the defendant any amount by which the additional costs exceed the costs payable to the plaintiff. (2) … (3) … .”
In this respect, the defendant submits that the sum of $5,000.00 could have and should have been recovered in the Magistrates’ Court;
[2] See Rule 63A.04 of the Rules
(d) During argument, reference was made to the ability of the Court to order costs on a so-called “issues basis”.[2] It was submitted by Counsel for the defendant that the plaintiff would be entitled to approximately 10 per cent of her costs, reflecting the limited success in the tree encroachment claim. 29 The defendant submits that an appropriate costs order would be for the plaintiff to pay the costs of the defendant on a party-party basis on the then Scale D of the County Court Scale of Costs to the date of receipt of the first Calderbank Offer and thereafter on an indemnity basis. Alternatively, the plaintiff to pay the costs of the defendant on a party-party basis in the Magistrates’ Court until uplifting on 17 March 2008, and thereafter on Scale D of the County Court Scale of Costs until receipt of the second Calderbank Offer on an indemnity basis. Furthermore, it was submitted that the Court should certify for two Counsel with brief fee for Senior Counsel at $6,600 and brief fee for Junior Counsel at $1,800.
30 The plaintiff submitted:
(a) The plaintiff has had some success in the proceeding and is entitled to a costs order; (b) In relation to the two Calderbank Offers, there was no issue that such offers were rejected but it was submitted that the rejection of a Calderbank Offer not later bettered by judgment does not lead automatically to an indemnity costs order in favour of the offereror. The question in each case is whether the offer was a reasonable offer of compromise and whether the rejection of the offer was unreasonable and the answer to that question turns in each case on all the circumstances of the case.[3] It was submitted that in exercising a discretion as to whether or not to award a special costs order after the rejection of a Calderbank offer, the Court should ordinarily have regard to the matters set out in Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No.2)[4] and in the circumstances of this matter, such factors as the stage of the proceeding in which the offer was received, the extent of the compromise offered and the clarity with which the terms of the offer were expressed are relevant, so it was submitted, in the exercise of such discretion;
[3] Reference was made to Nettle J in Berrigan Shire Council v Ballerini & Anor (No 2) [2006] VSCA 65 at paragraph [33]
[4] [2005] VSCA 298
(c)
In particular, it was submitted that the respective Calderbank Offers “did not even meet the plaintiff’s party-party legal costs incurred as at their respective dates”. Moreso, the first Calderbank Offer was directed to claims for loss of plants and fish consequent upon the tree lopping incident which was not part of this proceeding, and also addressed the fencing dispute which was not part of this proceeding and preceded any relevant expert material. The second Calderbank Offer also referred to claimed losses from the tree lopping incident, referred to the costs of rectifying property damage as not exceeding $3,000.00, and in this sense was not more favourable than the Judgment.
31 Counsel for the plaintiff submitted that an appropriate costs order would be:
(a) The defendant to pay the plaintiff’s costs on Scale A of the County Court Scale of Costs in default of agreement; (b) Certify brief for Counsel at $3,600.00, together with twenty-five refreshers at two-thirds of brief (such refreshers to include two refreshers for the preparation of written final submissions and one refresher for the appearance on 7 April 2011); (c) Certify for preparation for three days at $3,600.00 per day. 32 Counsel for the plaintiff also submitted that if the Court did make a special costs order on the basis of one or the other Calderbank Offers, then any special order for the defendant’s costs should not allow for Senior Counsel. It was submitted that the retention of Senior Counsel was not reasonably necessary for the attainment of justice and the enforcement of the defendant’s rights consistent with well established principle.[5]
[5] See Oldaker v Currington [1987] VR 712, at 715; Thomson v Ronstan International Pty Ltd (No 2) [2000] VSC 294
33 In answer to a query from the Court, Counsel for the plaintiff considered that “at least 70 per cent of the trial” was taken up on what he referred to as the attack on the plaintiff and the tree root claim evidence.
Relevant Legal Principles
34 Section 78A(1) of the County Court Act 1959 and Rule 63A.02 give the Court a wide discretion in determining costs of any proceeding.
35 The expression “Calderbank offer” has been held to mean an offer, usually by letter, that is expressed to be without prejudice save as to the question of costs and which indicates that the letter will be relied upon on the question of costs.[6]
[6] See MT Associates Pty Ltd v Aqua-Max Pty Ltd (No 3) [2000] VSC 163, at paragraph [125]
36 The making of a special costs order involves the exercise of a discretion and the principles governing the award of costs in respect of a Calderbank offer were discussed by the Court of Appeal in Hazeldene’s Chicken Farm Pty Ltd Case where the Court of Appeal stated:[7]
[7] See Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No.2) (op cit) at paragraph [25]
“The discretion with respect to costs must, like every other discretion, be exercised taking into account all relevant considerations and ignoring all irrelevant considerations. It is neither possible nor desirable to give an exhaustive list of relevant circumstances. At the same time, a court considering a submission that the rejection of a Calderbank offer was unreasonable should ordinarily have regard at least to the following matters:
(a) the stage of the proceeding at which the offer was received; (b) the time allowed to the offeree to consider the offer; (c) the extent of the compromise offered; (d) the offeree’s prospects of success, assessed as at the date of the offer; (e) the clarity with which the terms of the offer were expressed; (f) whether the offer foreshadowed an application for an indemnity costs in the event of the offeree’s rejecting it. … .”
37 A perusal of various authorities makes clear that the practice of making Calderbank offers is thought to facilitate the public policy objective for the litigants to end litigation as soon as possible. Such an offer causes the offeree to address the offer seriously.[8] Furthermore, I note the comments of Pagone J in BMD Major Projects Pty Ltd v Victorian Urban Development Authority (No 2),[9] where he states:
“The desirability of encouraging litigating parties to settle proceedings … makes it undesirable that informal offers attracting the Calderbank principles be burdened with technicality. … .”
[8] See Leichhart Municipal Council v Green [2004] NSWCA 341
[9] [2007] VSC 441, at paragraph [5]
38 I also note that Hazeldene’s Chicken Farm Pty Ltd held that there is no presumption that a party rejecting a Calderbank offer should pay the offeree’s costs on an indemnity basis if the offeree achieved a less favourable result. The correct approach was to treat the rejection of the Calderbank offer as a matter to which the Court should have regard when considering whether to order indemnity costs.[10]
[10] See paragraphs [18] to [20] of Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No.2) (op cit)
39 Rule 63A.04 of the Rules states:
“(1) The Court may make an order for costs in relation to a particular
question in or a particular part of a proceeding.(2) Where the Court makes an order under paragraph (1), the Court shall by order fix the proportion of the total costs of the proceeding which is attributable to the particular question in or the particular part of the proceeding.”
40 I refer to the Court of Appeal decision of Investec Bank (Australia) Ltd v Glodale Pty Ltd & Ors (No 2)[11] wherein the Court of Appeal referred to with approval the comments of Eames J in Pricom Pty Ltd v Sgarito & Ors,[12] wherein he stated:
“As a general rule costs should follow the event, and a successful party should obtain all of the costs of the action even although it failed to establish some of the alternative heads of its claim. … However, in the exercise of its discretion the court may decline to order costs in favour of a successful party, or may order the successful party to pay the costs of the unsuccessful party, where the plaintiff failed to establish discrete heads of claim, or failed to establish issues which it pursued in its claim, although ultimately succeeding on the basis of another discrete head of claim. … .”
[11] [2009] VSCA 113
[12] (unreported) VSC 12926 of 1990, delivered by Eames J on 10 April 1995 (BC9503266)
41 I also refer to the matter of Joseph Street Pty Ltd & Ors v Khay Tek Tan,[13] a decision of J Forrest J, wherein he referred to the decision of Chen v Chan (No 2),[14] which sets out the relevant principles for the making of an order for costs in circumstances where a proportionate order may be contemplated. J Forrest J stated:
[13] [2011] VSC 41
[14] [2009] VSCA 233
“(1)
The general rule is that costs should follow the event. Absent disqualifying conduct, the successful party should recover its costs even where it has not succeeded on all heads of claim.
(2) The Rules of Court permit significant flexibility in determining questions of costs. In particular, the court is entitled to examine the realities of the case and will attempt to do ‘substantial justice’ as between the parties on matters of costs.
(3)
Where there is a multiplicity of issues and mixed success has been enjoyed by the parties, a court may take a pragmatic approach in framing the order for costs, taking into consideration the success (or lack of success) of the parties on an issues basis. Generally, if such an order is made, it is reflected in the successful party being awarded a proportion of its costs but not the full amount.
(4)
A court may, when fixing costs in a claim where there has been mixed success, take into account complications which it considers will arise in the taxation of costs, as part of its consideration of the overall interests of justice.
(5)
Where a court determines to make an order apportioning costs, then it does so primarily as ‘a matter of impression and evaluation,’ rather than with arithmetical precision, having considered the importance of the matters upon which the parties have been successful or unsuccessful, the time occupied and the ambit of the submissions made, as well as any other relevant matter.”
The Ruling
42 After a consideration of all of the circumstances of this proceeding and the various submissions made by the parties, I make the following rulings in relation to costs:
(1) The defendant is ordered to pay 60 per cent of the following costs
incurred by the plaintiff:
(a)
costs of and incidental to the tree root encroachment claim and the poisoning claim on the appropriate Scale in the Magistrates’ Court in relation to an award of damages of $5,000.00, such costs to be determined by the Costs Court in default of agreement; and
such costs are not to include any costs of and incidental to the fencing dispute between the parties and any claim for damages in relation to events on 15 and 25 April 2002 which relate to tree lopping on or about those dates;
(b)
Certify for brief for Counsel at $3,600.00, together with twenty-five refreshers at two-thirds of brief fee (such refreshers to include two days for preparation of final written submissions and appearance on 7 April 2011). Certify for three days of preparation at $3,600.00 per day;
(c)
Certify for the preparation, filing and service of the Plaintiff’s Court Books to be determined by the Costs Court in default of agreement.
(2) The plaintiff is ordered to pay 40 per cent of the following costs:
(a) Costs of the defendant on the top scale of the Magistrates’ Court Scale up to and including 17 March 2008 and thereafter on Scale D of the County Court Scale of Costs to be determined by the Costs Court in default of agreement; (b) Certify for two Counsel: (i) Certify for brief for Senior Counsel at $6,000.00, together with twenty-four refreshers at two-thirds thereof (such refreshers to include two days for preparation of final written submissions);
(ii) Certify for brief for Junior Counsel at $1,800.00, together with twenty-five refreshers at two-thirds thereof (such refreshers to include two refreshers for the preparation of final written submissions and one refresher for the appearance on 7 April 2011);
(c)
Certify for the preparation, filing and service of the Defendant’s Court Books to be determined by the Costs Court in default of agreement.
(3) Stay on such Costs Orders for twenty-eight days. 43 I consider that such Costs Orders are appropriate in this proceeding for the following reasons:
(a)
I reject the submission of the defendant that the plaintiff should not be entitled to any costs as she has only been awarded a nominal amount of damages. It was necessary for the plaintiff to prosecute such claim to attain such damages and indeed, as I have already indicated, I came to the view that the balance of the tree encroachment claim had an arguable basis and was not hopeless. In such circumstances, I do not consider that the principle enunciated in Carolia Pty Ltd & Ors v Crompton & Ors[15] is apposite and in any event, I consider such decision turns on its own peculiar facts;
(b)
Although accepting that the two offers relied on by the defendant are appropriately Calderbank Offers, I do not consider the rejection of such offers to be unreasonable in all the circumstances of the case. It is unclear on the available material to the Court as to what amount of party- party costs the plaintiff had incurred at the date of either “all in” offer and the Court declines to make an express finding on such issue on the available material. I consider that the extent of the compromise offered, and the clarity with which the terms of the offer were expressed, are relevant in the circumstances of this matter. Consistent with principle, I do have regard to the rejection of such offers but in all the circumstances, do not consider it appropriate to order any indemnity costs;
(c)
After a consideration of all of the circumstances, I have come to the view that the best approach in order to do substantial justice to either party is to award costs on a proportionate basis consistent with the issues that the plaintiff won and lost, the time spent on a variety of issues during the trial, the ultimate sum recovered by the plaintiff and the amount of evidence led in relation to the issues. As confirmed by higher authority, such an approach is a “matter of impression and evaluation” rather than an approach with arithmetical precision;
(d)
Consistent with Rule 63A.24, I formed the view that any costs recovered by the plaintiff should be limited to the appropriate Magistrates’ Court Scale and any costs recovered by the defendant should be on the higher scale of the Magistrates’ Court, defending the various claims until the uplift of the proceeding, and thereafter on Scale D of the County Court Scale of Costs;
(e)
Contrary to the submission from Counsel for the plaintiff, I do consider that the defendant is entitled to certification for two Counsel, bearing in mind:
[15] See paragraph 28](a) of this Ruling
(i) the volume of material involved;
(ii) the number of witnesses who were called over the length of the trial;
(iii) the length of the trial;
(iv) the variety of evidentiary and other matters requiring rulings during the trial;
(v) in particular, the allegation against the defendant as to the poisoning claim.
In all the circumstances, I consider an appropriate fee for Senior Counsel in such jurisdiction to be $6,000.00 on a brief and refresher basis. I also note that Junior Counsel’s brief fee was $1,800.00. I consider such fee reasonable.
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