111 / 132
MAR., 1909]
The Gazette of the Incorporated Law Society of Ireland.
103
Each
successive Act contained provisions,
either by changing- the tribunal of ultimate
decision from Parliament to the Lord Lieu
tenant in Council, or from that tribunal to
the County Court Judge, or by shortening
the period through which title was
to be
deduced, or otherwise saving expense and
time. At each successive step provision was
made in reference
to solicitors' costs; and
taking the code as a whole, I have arrived at
the clear conclusion that interference with the
theretofore existing methods of ascertaining
solicitors' costs was one of the prominent
objects of the Acts.
Having gathered this from the legislation, I
come back to the construction of sect. 31. The
most plausible of the arguments we have heard
in support of the restricted construction is that,
were it intended to authorize the constitution
of a new authority for the taxation of costs,
such intention would have been evidenced by
particular instead of general w.ords ; and we
were asked to contrast the generality of the
words in sect. 31 with the specific enactment
in reference to costs in the County Courts con
tained in sect. 11. We were told that the rights
of solicitors in reference to their charges upon
the investigation of title to real property were
the subject of special consideration of Parlia
ment, and was determined by it by the Solicitors'
Remuneration Act of 1881, and that the general
words of sect. 31 of the Act of 1906 ought not
to be taken to repeal the Act of 1881, so far as
related to these Title Costs, unless an affirma
tive intention in the Legislature was shown.
I
agree in this principle.
I agree that the maxim
generalia specialibus non derogant
renders it neces
sary, in order to support the construction which
interferes with the operation of the Act of 1881,
to show upon the face of the Act of 1906 that
the attention of the Legislature was specially
directed to the amount of the remuneration of
solicitors for making title to the lands taken ;
and, in my opinion, this is abundantly shown
in the Act itself.
I have already called atten
tion to the sections where solicitors' costs are
expressly interfered with, and to the general
scope of the Act, which simplified the investi
gation of title, and, therefore, presumably,
ought to reduce the remuneration for such
investigation ; and then I find that the rules
by which the jurisdiction under this section is
to be exercised are to be made " after consulta
tion with, or notice of consultation sent to the
President of the Incorporated Law Society of
Ireland." The protection afforded to solicitors
by the Act of 1881 was that the same officer,
the President for the time being of the Incor
porated Law Society, was made one of the four
persons, any three of whom, the Lord Chan
cellor, the Lord Chief Justice, and the Master
of the Rolls, being the other three, were given
power to make a General Order regulating the
remuneration of solicitors in respect of making
title to real property ; and, in my opinion, the
provision that the President of the Incorporated
Law Society should be given an opportunity of
consultation with the Local Government Board
before the rules were made was for the express
purpose of securing that such alteration as
might be made in the scale of remuneration
fixed under the Act of 1881 should be a
reasonable one.
Being, then, clearly of opinion that there
was jurisdiction under this section to make a
general rule altering the scale of fees to be
allowed to solicitors in respect of matters not
otherwise provided for by the Act, the remaining
question is, was it necessary that those fees
should be referred for taxation to the taxing
masters of the Supreme Court ?
I cannot
find anything on the face of the Act rendering
this necessary.
" May provide for the taxation
of costs " means " may make such provision for
the taxation of the costs as they shall think fit,"
and the appointment of any person to tax such
costs who is willing or bound to tax is, in my
opinion, a provision to that effect. The fact
that there is power to change the scale of fees
appears to me to be a strong argument in
favour of this view, as the usual function of
the taxing masters of the Supreme Court is to
tax according to the scale binding upon them.
Further, the word " fees " in the section,
prima
facie,
includes Court and Office Fees; and this
primafacie
inference is strengthened by sect. 22,
that " no fees shall be payable in the Local
Registration of Title Office, or in the Registry
of Deeds Office, as defined by the Local Regis
tration of Title (Ireland) Act, 1891, and the
registration of the ownership of any land pur
chased
by a District Council under
the
Labourers Acts, or for any searches made,
or land certificate issued to a District Council
in respect of such land."
Now, fees are payable to the taxing masters
of the Supreme Court in respect of the taxation
of costs, and it seems to me perfectly clear that
the general rules under sect. 31 could not alter
the office fees paid in respect of taxation by
the Supreme Court taxing masters ; and, there
fore, if it were essential that the taxation should
be by the Supreme Court taxing masters, the
rules under this section could not fix " the