The Gazette 1940-44

The Gazette of the Incorporated Law Society of Ireland

January, 1943]

35

SOLICITORS' COSTS—GROSS SUM. General Order of 15th November, 1920. Our attention lias been drawn to the fact that the note in the December issue of the Gazette on the English decision in re Nabarro (on the interpretation of the English • equivalent to the above Order) might suggest without a careful perusal of the Order, that the scope of the decision is wider than it is in fact. The principle laid down in re Nabarro in its application tc ihis country relates only to the business specified in the Order, namely, business the costs of which are regulated by Clause 2 (c) of the General Order made under the Solicitors' Remuneration Act, 1881. It does not affect the principle operating in regard to contentious business; or any non- contentious business not covered by Clause <. 2 (c). It would appear that the remuneration '/ for business not within Clause 2 (c) is still governed by the limitation stated in Cordery, and that accordingly a client who has received a bill of costs lor such business for a gross sum may require it to be fur nished in detail and taxed without the risk of having to pay the excess should the detailed bill tax to more than the gross sum. LIABILITY OF SOLICITOR FOR HONEST MISAPPLICATION OF TRUST FUNDS. Solicitors acting for trustees will welcome the decision, in Williams-Ashman v. Price & Williams (1942) 1. Ch.219., in which the Plaintiff, who was a beneficiary iinder a trust, sought to make the Defendants, who were Solicitors for a deceased trustee, personally liable for an honest misapplication of the trust funds on the instructions of their client. The Plaintiff's argument was based on the following passage in Underbill's " Trusts," 9th Edition, page 548—" Where trust funds come into the custody and under the control of a Solicitor, or indeed of any one else, with notice of the trust, he can only discharge himself of liability by showing that the property was duly applied in accordance with the trusts." The Solicitor defendants who, some years previously had prepared, and still retained, the trust deed, had forgotten its existence, and on the trustee's instructions had received portion

of the trust monies and applied them for purposes unauthorised by. the trust deed. Bennett, J., held that although one of the defendants had acted, perhaps, incautiously none of them had inter-meddled by doing acts characteristic of a trustee and outside their duties as Agents in such a manner as to become trustees de. sow tori, and the action failed. COSTS OF SOLICITOR PRACTISING WITH- OUT LICENCE. Iri the case of Cooling v. the Minister for Finance (as yet unreported) the plaintiff obtained judgment for damages with unascer tained costs against the defendant. His solicitor served the defendant with a bill of costs and issued a summons to tax. After the costs had been taxed and certified the Defendant discovered that the Plaintiff's Solicitor had not in force a practising Certifi cate. He refused to pay the costs and by consent the matter was brought before the Court on Notice 'of Motion. It was held by the President of the High Court that an objection to the payment of costs under Section 48 of the Solicitor's (Ireland) Act, 1898, by a Defendant must be made before the issuing of the Taxing Master's Certificate. The case, he said, turned on the meaning of the word " recover " in Section 48 which was "recover in an action ". It was held that the certified costs had merged in the judgment and that unless the judgment was set aside it must be acted upon. It was too late at that stage to take the objection. It should be noted that the reasoning of the decision, which was based on the merging of the costs in the judgment already entered in the action, is not applicable to the Taxation of Costs by a client on a reqiiisition to tax where there has not been previous judgment for the costs. Furthermore, in Cooling's case it would appear that the judgment for the damages and costs was in favour of the client and that the judgment did not decide whether the Plaintiff's Solicitor would be entitled to enforce payment to him by his client of the costs so recovered if paid to the Plaintiff.

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