109 / 132
MAX., 1909]
The Gazette of the Incorporated Law Society of Ireland.
101
and he is once fixed with the liability to pay the
bill
incurred by another person, or what
ever it may be, you have settled everything
requiring to be settled judicially. The rest fol
lows as a matter of course upon definite and
fixed principles ; and it has been well described
by one of the learned judges in one of the cases
that were cited, as a ' ministerial' act, and not
a judicial act which remains to be done. The
judicial act was deciding upon the question of
principle, and ascertaining whether the gentle
man was liable to pay the costs at all. The
case of
Holdswoiih
v.
Wilson (2
B. & S. 480 ;
4 B. & S. i) has been cited upon this point.
I
am extremely glad to find that there is such an
authority, and I am extremely glad to follow
it, and I think it carries the case now before
the House."
In these cases it is true that taxation was not
a condition precedent to enforcing the liability
to pay; but, in my opinion, the character of
the act of taxation cannot be altered merely by
there being such a condition precedent.
If one has an interest in the performance of
a duty which is wholly ministerial, he can (in
the event of non-performance, or of such defec
tive performance as in law does not amount to
performance) enforce performance.
In
The Queen
v.
The County Court Judge of
Tyrone
(10 L. R. I. 217)
certiorari
was held in
applicable, notwithstanding taxation being a
condition precedent.
Therefore it seems to me that, if we yielded
to the contention of the Counsel for the pro
secutor as to the construction of the section,
we necessarily should reverse this Order, upon
the ground that it is not. examinable upon
certiorari.
I say this, however, not as in any
sense determining this case ; but to show that
whether
certiorari
lies or does not lie depends
upon the construction of the section, which I
now proceed to consider.
The main questions which have been argued
on this section are two—(i) Whether Rules
can be made to alter the schedule of fees fixed
by the second schedule to the Order under
the Solicitors' Remuneration Act, 1881.
(2)
Whether such Rules can constitute an authority
other than the Taxing Masters of the Supreme
Court for taxation of the costs within the
section.
In my view, it will be convenient to consider
the section separately in two different aspects ;
viz.:—
firstly,
perse,
without regarding as bearing
upon it, the general character of the enactment
in which it is found, and secondly, to consider
the extent, if any, (o which the literal con
struction,
viz. :—
that arrived at by the first
consideration, must yield to the general pur
pose and scope of the enactment.
Taking the section
per se,
it does not appear
to me to present any insuperable difficulty :—
"The Local Government Board, after con-
" sultation with, or notice of consultation sent
"to, the President of the Incorporated Law
" Society of Ireland, may make rules which,
" subject as aforesaid,"—(that is, subject to
certain other provisions of the Act, to which
I shall hereafter call attention)—" may fix the
" amount of
any
fees, and may provide for the
"taxation and payment of
any
costs to be
" received, allowed, or paid, in relation to the
" confirmation by the Local Government Board
"and the carrying into execution of improve-
" ment schemes."
It seems to me to be incontestable that, the
expression " any fees" which are to be fixed by
rules made in consultation with the President
of the Incorporated Law Society, who
in
numerous modern Acts of Parliament has been
selected as the person to protect the interests
of the general body of solicitors, must include
the fees of solicitors.
Serjeant O'Connor ex
pressly admitted that it did
include them.
Mr. Matheson, upon the other hand, I under
stood to contest this; and it is only for that
reason that I mention that, as far back as our
statutes in relation to solicitors extend, it will
be found that the expression " fees " has been
deemed to be the apt and proper word for
describing the remuneration of attorneys and
solicitors. It is so used in 7th George 2 (Irish),
part of the title of which is "Also for the
better regulating the payment of the Fees of
Attorneys and Solicitors"; in the ist and 2nd
George 4, c. 17, the title of which includes
the words " for better regulating the fees of
attorneys and solicitors"; in the i2thand I3th
Vict. c. 53, which forbids an action or suit for
recovery of " any fees, charges or disburse
ments for any business done by attorneys or
solicitors" until the expiration of a month
from the delivery of the bill; in the Rules
under our Judicature Act, Order LXV, Rule 19,
under which the costs and fees payable to
solicitors shall be those prescribed by the
Rules of this Order and Appendix S, Part I;
in that Appendix, " Costs and Fees in Supreme
Court proceedings," and in the Order under
the Solicitors' Remuneration Act of 1881,
Schedule II, "such fees for instructions," &c.
The distinction between fees and costs is that
the latter includes disbursements. Taking it
then that the section includes solicitors' fees,