75 / 110
JANUARY, 1913.J
The Gazette of the Incorporated Law Society of Ireland.
His Honour,
in delivering a
reserved
judgment, said :—There are two bills of costs
sued on—one for £21 3s. 5d., comprising the
costs from January 28 down to May 8, when
the arbitration was completed ; and a second
for
£1
15s. 10d., relating to the costs from
May 18 to June 17, of defending the action
brought by the Insurance Co. against Mrs.
Nealor to recover the costs of the arbitration.
It is necessary to distinguish these two bills
in view of the defences raised. There was a
general defence of negligence to the whole of
both bills on the ground that the advice given
by the plaintiff and his former partner to
Mrs. Nealor to submit her case to arbitration
and to allow the costs to be taxed by the
arbitrator was such a gross error of judgment
as to preclude the plaintiff from recovering
anything from Mrs. Nealor for his services in
connection therewith. But, after hearing the
evidence not only of the plaintiff but of Mr.
Grant McLean, who conducted the arbitra
tion tor the Norwich Union, I have no doubt
that the matter was a proper one to be sub
mitted to arbitration, and that Mrs. Nealor's
case was competently handled by the plain
tiff, and that the arbitration and taxation
were carried out as they were, owing to the
strong desire of Mrs. Nealor
to
avoid
publicity.
It was further contended (1) that Capt.
Nealor was not liable at all, because there
was no evidence of any retainer of the-plaintiff
by him ;
and (2) that Mrs. Nealor was not
liable for the costs relating to the action
brought by the Insurance Co. because she
had given no retainer to the plaintiff in regard
to these proceedings. There is, however, to
my mind, clear evidence that Mrs. Nealor
instructed the plaintiff and swore an affidavit
in these proceedings, and I have no doubt
that she retained him to defend them for her.
In regard to Capt. Nealor, it was admitted
by plaintiff's Counsel that the sole evidence
of retainer by him was to be found in a letter
addressed on June 26 by Messrs. Chamberlain
& Co., his then Solicitor, to Sayers & Wilkins,
in which Messrs. Chamberlain said that
" they had been consulted by Captain and
Mrs. Nealor in reference to their position with
the Norwich Union," and in which they
added that " they were somewhat surprised
to hear that Messrs. Sayers & Wilkins had
not put forward the proposition Capt. Nealor
instructed them to put forward." The reply
to this on the next day by Sayers & Wilkins
did not look as if the latter understood the
letter in the sense now suggested, for they
wrote :
" We thank you for your letter, and
observe that Mrs. Nealor has instructed you
in this matter." Up to that point, as the
correspondence
conclusively
shows, Mrs.
Nealor had acted and been treated as their
sole client by Sayers & Wilkins, and Capt.
Nealor had not only not at any time
instructed them, but had refused even to give
evidence at the arbitration, and it was not
till July 3 that Sayers & Wilkins made a
demand upon both husband and wife for
their costs. No doubt a retainer need not be
given in writing.
It may be given even by
implication ;
but it is for the plaintiff to
establish it; and under the above-named
circumstances I cannot find that there is any
evidence to justify my holding that Captain
Nealor ever
retained Messrs. Sayers &
Wilkins.
There remains the most difficult part of the
case. The two bills of costs for
£28
19s. 3d.
now sued on were not delivered till July 3,
but early in June a correspondence took place
between Mrs. Nealor and Sayers & Wilkins,
the legal effect of which, it is contended, is
that they delivered a bill for
£10
in full
settlement of the same costs, by reason of
which
they are precluded
in
law
from
delivering any further bills
for a
larger
amount.
His Honour read five letters, and pro
ceeded :—The argument urged on behalf of
the defendants
is
that the statement in
Sayers & Wilkin's letter of June 4, " The
balance (£10) are our costs in the matter.
We have no doubt you will appreciate our
view of the matter when you contrast our
costs with those of the other side," amounted
to a delivery of a bill of costs for
£10,
and
that the bills now sued on are in consequence
a mere nullity.
I cannot find anything to
support this argument either in the Solicitors
Remuneration Acts or in any decided cases.
There is no statutory definition of the term
" bill of costs," and in the absence of that,
or any judicial interpretation, I must give the
words their natural meaning. Giving them
their natural meaning, they must mean a bill
so stated that the client can obtain advice as
to its taxation, and it must, therefore, have