The Gazette 1913-14

The Gazette of the Incorporated Law Society of Ireland. [NOVEMBER, 1913

52

Recent Decisions affecting Solicitors. (Notes of decisions whether in reported or unreported cases, of interest to Solicitors, are invited from members.} KING'S BENCH DIVISION. (Before Boyd and Kenny, JJ.) DONNELLY V. MALONE. May 13, 1913— Costs—Solicitor and client— Review of taxation—Attendances—Special fee—Written authority of client—OrderLXV., v. 20, Where a solicitor attends personally at the hearing of an action on the written instructions of his client, and thereby incurs expenses for which he charges in his bill of costs : Held, the Taxing Master has discretion in making disallowances. To entitle the solicitor to such costs he must not only show a special contract with his client, but that they were just and reasonable. The authority given by the client must be regarded as qualified by the discretion in the Taxing Master to disallow. ' • Motion on behalf of the solicitor for defendant, in a action of M'Donald v. Don-nelly, for review of taxation of solicitor and client costs. The action was brought on foot of a promissory note for £245 15s 10d., dated 1st February, 1904, made by Donnelty and payable on demand to Margaret M'Donald. of South Bank, England. The defendant, on the 14th September, 1912, gave a mortgage to his solicitor to secure the costs of the action. On the 28th November, 1912, after the pleadings in the action had been closed, Donnelly consulted Mr. Malone with reference to the date of the trial, and Mr. Malone told him that notice of trial was served for the 7th December, 1912, The de fendant, Donnelly, signed an authorisation on the 28th November, 1912, in the following terms :—" I authorise and request you to attend personally in Dublin on the hearing of this action, and also to attend any consul tation that counsel may direct." The appli cant, as solicitor for defendant, attended per sonally in Dublin from the 7th December, 1912, when the case first appeared in the list, till the 18th December, 1912, on which day it was tried (the hearing occupying only part of one day), and judgment was given for the plaintiff, Mrs. M'Donald. On taxation the items of the bill of costs objected to were

(Nos. 75 and 76. covering attendance by soli citor in Dublin on the hearing for nine days at £3 3s. per day, amounting to £28 7s., and train fare and car hire /3 18s. 4d. Objection was made that the personal attendance of the solicitor was unnecessary, as there was no special difficulties in the case. The rulings of the Taxing Master were as follows :— " 10s. a day for eight of the nine days he was in Dublin, and £2 2s. for the day verdict was given." He disallowed entirely railway ex penses on the ground that the solicitor's per sonal attendance was not necessary, and was not directed by counsel, and were not just or reasonable or proper under the circum stances, and the Taxing Master based his rulings on Cramsie v. Greer, [1894] I. R. 136 ; also on Order LXV., r. 20. BOYD, J.—In my opinion, and I believe in that of my brother Kenny, the decision of the Taxing Master ought to be affirmed. I think rule 20 of Order LXV. lays down what shall be done in all cases where it is sought that special costs shall be allowed to a soli citor. The second part of the rule is as follows :—" With regard to charges of such a nature that they could not be taxed as between party and party, such costs shall in no case be allowed in whole or in part, unless incurred at the special previous request of the client signified in writing, or unless sub sequently and before taxation ratified by the client in writing, and it shall distinctly appear that the client was made aware that such charges could not be taxed or recovered as between party and party ; but such charges shall only be allowed if and so far as the Taxing Master shall consider it just and proper to allow the same." I am not aware that any such information was afforded the client in this case. The plaintiff appears to have known nothing of his liability, and whether or not the costs could be taxed as between party and party. I hold the Taxing Master was right. KENNY, J.—1 concur with my brother Boyd. These allowances of costs depend on Order LXV., r. 20, which has been read by him. There are three limbs in the second portion of that rule. There is a proviso in respect of charges for work and outlay pro perly done or made if the same be of such a nature that charges in respect thereof might