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100
The Gazette of the Incorporated Law Society of Ireland.
[MAR., 1909
acted. The section says that the Board may
provide for the taxation and payment of any
costs to be received, allowed, or paid. Rule
55, which for this purpose we must assume to
be
intra vires,
provides that the owners' costs
shall be
referred to
the Board, who shall
arrange for the taxation of the same ;
and the
sum which, after
taxation, the Board may
certify shall be the sum payable.
[His Lord
ship read the certificate of ijth April.]
It
is admitted that taxation was a condition pre
cedent, and they decide what is to be paid.
The fact that their decision is illegal does not
help, because that element exists in the case
of every illegal judicial act .capable of being
quashed.
As a general
rule
certiorari
lies
wherever the judicial act complained of im
poses liability or affects a right.
I think,
therefore,
certiorari
lies.
I may observe that in the
Tyrone Case
the
Chief Justice relies strongly on the circum
stance that the Chairman did not make and
could not make any order for payment of the
costs ;
but this is exactly what the Local
Government Board does in this case.
THE LORD CHIEF BARON :—
Two questions have been dealt with by the
judgments in the King's Bench Division, and
argued by counsel here, viz.:—(i) Whether the
action of the Local Government Board was
within the jurisdiction conferred upon them by
sect. 31 of the "Labourers (Ireland) Act,
1906"; and (2), if not, whether the Act by
which they purported to exercise that jurisdic
tion, whether it be called a certificate or an
order, is examinable upon
certiorari.
Of these questions, the latter is first in logical
order; but when it comes to be considered, it
will be found to be inextricably mixed up with
the first question—that 'of the merits.
I say
this because if, upon the true construction of
this 3ist section, the General Rules which the
Local Government Board has jurisdiction to
make do not extend to fixing any scale of
solicitors' fees, if those Rules cannot provide
any authority other than the taxing masters of
the Supreme Court to tax the costs in question,
and if the Rules under that section must be
restricted, so far as regards the costs of the
vendor's solicitor, to limiting the periods of
time within which those costs must be fur
nished to local authorities, to requiring local
authorities to promptly furnish requisitions to
tax, so as to give the taxing masters jurisdic
tion, for arranging with those taxing masters
for immediate taxation, and to provide for the
payment of those costs as ascertained upon
such
taxation,
it would, to my mind, be
impossible to contend that those duties were
judicial.
This section does not confer any jurisdiction
to determine the
right
to these costs, which
depends on statute ; and it is absolutely settled
by decisions of the highest authority, both in
England and Ireland, that where the
right
to
costs depends on statute, the ascertainment of
the amount of those costs, when such ascer
tainment is not to be the act of a Court, is
ministerial and not judicial.
In my opinion the law is accurately stated
by the Lord Chief Justice in the following
passage of his judgment in 77;,?
King
v.
Goff
(1905 2. I. R., at p. 128), which was a case in
reference to costs of arbitration taxed by a
taxing master of the Supreme Court under the
Lands Clauses (Taxation of Costs) Act, 1895.
'• There remains, then, the important question,
Can the taxation of the taxing' master be chal
lenged by
certiorari?
We think not. We think
that in such a case the procedure by
cerliorari
is inapplicable, because the taxing master's
function is ministerial, and his certificate does
not impose a final binding liability. The costs
under the Act of Parliament are referred to him
to be taxed and settled. The master has no
judicial discretion to determine whether the
parties shall or shall not get costs at all. His
function is to ascertain an amount—to measure,
moderate, and settle ; and in doing this he is
guided by rules of practice so far as they are
applicable, or can suggest an analogy. This
is
not a judicial act in the sense in which the
expression 'judicial act' is understood in pro
ceedings by
certiorari."
The same principle is laid down by Lord
Hatherley in
Metropolitan District Ry. Co.
v.
Sharps
(5 A. C., at p. 439),
in which the
question also arose as to costs of an arbitra
tion.
He says :—" The principle of taxing-
costs is well understood, and I do not think
that the circumstance that if a reference is
made to the taxing master, and he is
persona
designata,
I do not think that can make any
substantial difference in the case. He must
proceed on definite and fixed rules, not as
investigating the facts with a dubious result
in law attached to those facts, but simply as
taxing the bill in the ordinary way in which he
acts when any gentleman who wishes to dispute
a bill brought against him by his own solicitor,
has a right to have it taxed.
If it is decided
that that gentleman is bound to pay the soli
citor's bill of another person for some litigation
which he has entered into, when that issetiled,