115 / 132
MAR., 1909]
The Gazette of the Incorporated Law Society of Ireland.
107
in relation to the confirmation by the Local
Government Board
and the carrying into
execution of improvement schemes."
Ser-
jeant O'Connor has admitted that these Rules
may prescribe a scale of costs connected with
the making of title and the conveyancing of
the lands compulsorily taken, subject to the
limitation that such scale must be confined to
the costs of the Local Authority, and does not
extend to those of the owners.
I can find
nothing in the language or intention of the
Act to justify this limitation.
It may be true,
as Serjeant O'Connor argued, that the policy
of the Lands Clauses Acts, taken as a whole,
has been to indemnify the owner of land taken
from him without his consent against the ex
penses to which he is put by the compulsory
transfer. But this is not inconsistent with the
taxation of these expenses according to a scale.
Hitherto there has been such a scale, and
there is nothing unreasonable in providing for
a revision of the present fees. The other point
argued on behalf of the respondents is that
even if the provision I have read authorizes a
rule prescribing the amount of fees, it does |
not empower the Board to appoint a new taxing
authority. This is a matter as to which I have
some doubt.
I am satisfied that the words
" to provide for the taxation" of the costs do
not enable the Board itself to assume the duty
of taxation. They may, however, permit the
Board to nominate independent officers to do
so ; and I do not differ from the view of my
colleagues on a point which seems to me to be
-of small importance, as it is not likely that the
Board will substitute a new tribunal for a taxing
department consisting
of experienced civil
servants whose skill, competence, and strict
impartiality are universally recognized.
Having thus stated my opinion on the two
principal questions argued, I have to add that
the question for our decision—the validity of
the certificate—is not affected thereby.
The only rule made under sect. 31 relating
to costs is the 55th of the Rules of the ist
November, 1906, which provides that, "where
costs are payable by a council to an owner or
lessee of land in respect of the giving proof of
title of any plot by such owner or lessee, such
i
costs shall be referred to the Board, who shall
j
arrange for the taxation of the same; and the
j
sum, which, after taxation, the Board may cer- j
tify shall be the sum payable in respect of I
such costs." Except in one respect, this rule
,
merely repeats portion of the section; but I
am rather disposed to think that it was drawn
i
on the assumption that the Board was given
by the statute complete authority to ascertain
for itself, irrespective of any prescribed scale
of fees or independent taxation, the amount to
be paid. If this be so, the view was erroneous ;
until a new scale of fees is prescribed by Rule,
the former scale is operative ; and until a new
taxing authority is appointed, the existing
mode of taxation continues. Therefore, when
Sir George Roche sent Lady Mowbray and
Stourton's costs to the Board, they ought to
have been dealt with by a taxing-master as
before the Act of 1906. The portion of sect- 31
that enacts that the Board may by Rule provide
for their payment justifies so much of Rule 55 as
says that " the sum which, after taxation, the
Board may certify shall be the sum payable."
This is both new and valid, and imposes on the
Board the duty of seeing that there has been a
legal taxation, and of giving
its certificate
for the amount so ascertained. The certificate
furnished in this case to the Local Authority
is perfectly correct in form, reciting in effect
that there has been a taxation, and certifying
the result. The objection to it is that there
had been no taxation. The Board sent the
bill of costs to its own solicitor, asking him to
offer his recommendations, and in doing so to
have regard to a scale of fees that had never
been prescribed by rule or otherwise. He
reported as to the several items to his em
ployers ; and the sum certified, though based
on this report, varied slightly from it in amount,
and was less by almost a half than what the
owner was entitled to.
All this was done
behind the backs of the persons interested,
who had no notice of the proceedings.
In
these circumstances there can be no doubt
that the certificate is bad in law ; and I have
now to consider whether the owner has any,
and, if so, what, remedy. The Solicitor-General
has argued that it cannot be quashed by means
of a writ of
certiorari
;
as that proceeding is
only applicable where the document impeached
is judicial and not ministerial.
The line of
separation which
these words
imply is very
shadowy and difficult
to fix by definition;
there is, however, one test which I apply in
the present case.
The certificate under the
rule, which in this respect is
-infra -vires,
is a
necessary condition
to give a right and im
pose a liability to the payment of the costs.
Without it the owner cannot sue, and the
council cannot pay.
In
this respect it re
sembles the judgment of a court of justice,
and ought to be regarded as judicial in its
character.
This is the distinction between
the present case and
The Queen (Pnverscourf)