74 / 132
66
The Gazette of the Incorporated Law Society of Ireland.
[DEC., 1908
Counsel for the Board disputed the validity of
all the above contentions, and, in addition,
argued that
certiorari
was not an appropriate
remedy. I shall discuss these various points.
I have derived much help from Mr. Bolton's
valuable and complete work.
As to the construction of section 31 at the
time the Act passed, though what I -may call
litigious costs were taxed by a designated
officer, whose decision was not the subject of
review, conveyancing or title costs of the
vendor were, it was not questioned, disposed
of by a taxing master as officer of the
Court, and his taxation, if erroneous, could
be corrected. This appears from section 53
of the Lands Clauses Act, and the Act of
1864. Schedule 2 of the Housing of the
Working Classes Act introduced a cheaper
procedure
pro tanto
superseding the previous
system, and also dealt with the questions
of vendor's title costs (see, for example,
paragraphs 10, 22, etc.), but it did not alter
the taxing officer. Counsel for the Board
argue that section 31 of the Act of 1896, in
the interests of economy and expedition,
authorizes the Board, after consultation with,
or notice to the President of the Incorporated
Law Society, to make rules not only as to the
taxation of costs, but to erect a new taxing
authority, who, unlike the taxing master,
would be free from all possibility of correction.
Questions as to what may or may not be
included in vendor's costs on compulsory
acquisition of land are often of extreme legal
difficulty, as the Law Reports show, and the
applicants could urge that the vendor's right
to have costs taxed by a Court officer subject
to judicial appeal cannot be taken away
without clear and certain language. Counsel
for the Board rely on the Act of 1885,
section 12, and the order in Council made
thereunder; and they further urge that the
applicant's construction deprives the section
of all substantial operation.
The Act of 1885, section 12, sub-section 7,
which was probably to some extent the model
on which section 31 was framed, enables
general rules to be made for regulating
procedure under section 12, and generally for
carrying it into effect, and for fixing the
amount of any fees, and the taxation and
payment of any costs in relation to the con
firmation of provisional orders. The order in
Council thereunder made the Chief Crown
Solicitor the taxing authority. This order was
clearly
intra vires,
relating as it does to
expropriation procedure, but it does- not
appear to me to extend to vendor's con
veyancing or title costs,"nor does the section
contemplate such costs. The existing function
of the taxing master in relation to such costs
was not superseded by section 12.
Section 31 of the new Act is much wider
than section 12 : it brings in the head of the
solicitor profession, and adds in relation to
costs the words, "the carrying into execution
of improvement schemes." What " fees " may
include does not require decision.
The section, compared with section 12 of the.
Act of 1885, raises two points. The first is,
does it extend to conveyancing or title costs ?
This point was not argued, and I pass it by
without expressing any opinion on it, assuming
it covers such costs. Does it enable the
taxing master to be displaced by a new non-
appealable official ?
If the taxing officer is
still to act, it has only small operation ; it
allows the petition or requisition to tax to be
got rid of, and enables rules for taxation to be
made in the interest of celerity and economy.
It cannot, therefore, be said that the applicant's
construction makes the provision inoperative.
No doubt, the policy of the legislation was to
check appeals and lessen expense, but is the
section sufficiently clear to put in the place of
the Court officer a new functionary not subject
to review ?
Parliament may have intended to make the
change, but (as Lord Watson observed in the
Pharmaceutical Case 5, Appendix C., at p. 857)
if it has not used adequate language for the
purpose, having regard to recognised rules of
construction, we cannot give effect to such
supposed intention.
Without pronouncing
any concluded opinion, as I think the order
must be quashed on other grounds, I shall
assume that the existing tribunal may be
displaced under section 31. Assuming the
section had that effect, it would seem to point
to some person outside the Board ; the Board
itself could not tax, and such person is to act
under a general rule. I do not think the
section authorizes the Board to retain the
matter in their own hands, getting advice and
assistance from others if they thought fit, and
I doubt if it would justify a rule, that instead
of a permanent taxing authority, they might
employ individuals
ad hoc
from time to time in
their discretion—a course which might well be
open to suspicion and abuse. The rules are
to be laid before Parliament, and it would be
desirable that the person or persons to tax
should be described and identified.
2. Assuming that the Board had power to