75 / 132
DEC., 1908]
The Gazette of the Incorporated Law Society of Ireland.
make a rule constituting a new taxing authority,
what is
the construction of Rule 55 ?
The
Solicitor-General reads it as meaning that the
Board are only to receive the bill of costs, and
allot it for taxation to anyone
they deem
competent. Mr. Ronan interprets the rule as
meaning
that
the Board was
the
taxing-
authority—they were
to
certify the costs,
getting help if required. Comparing the rule
with the new substituted rule, and looking at
the
terms of
the memorandum on which
Mr. Mecredy acted, the wording of the order
of the Board of April I3th, and the corre
spondence, I think that the Board considered,
probably rightly, that the rule meant what
Mr. Ronan says.
If so, it would seem to me
ultra vires.
I doubt also whether interpreted
in the Solicitor-General's sense—that is, as
enabling the Board to appoint any person to
tax
ad hoc—
it was such a rule as section 31
contemplates.
If
the
rule authorizes
the
appointment of a special individual to tax
in each case, might not such appointment be
within section 102 of the Local Government
Act of 1898 ?
3. Mr. Mecredy acted under
the Board
memorandum, which'directed him as to what
he was to do. There is no certificate of taxa
tion ; but there is no doubt that, though the
applicant from the frame of the order and cor
respondence thought otherwise, the deductions
from the Bill were made all by Mr. Mecredy
and not by the Board. The items disallowed
or reduced were only disclosed to vendor's
solicitors as
p.
favour.
If Mr. Mecredy was an
independent taxing authority, the Board mis
took their position :
they had no right to inter
fere with him or give directions—a course the
more objectionable as the firm were
their
solicitors. Their action indicates that they did
not regard Mr. Mecredy as an independent
responsible officer, but treated him as their
solicitor to whom they could give directions
and resort for assistance. There is some un
certainty as to who was to tax, as the firm con
sists of two partners.
I assume the senior
partner was intended. The direction to apply
the new scale was wrong, as no such scale
was then legally in force.
On the whole, I think the taxation under
these circumstances cannot be supported.
4. The bill was taxed by Mr. Mecredy with
out giving the vendor's solicitors an opportunity
of being heard in support of items or amounts.
Some of the disallowances seem arbitrary;
others are on the ground of want of vouching,
e.g.,
the small postage and parcel item. As
already observed, title costs often raise trouble
some questions ; and I am of opinion that no
title costs, as here, can be adjudicated on
without giving the person affected a hearing, if
he desires it. A taxation under the existing
procedure requires notice to the parties, and
the fact-that the new taxing authority is not
subject to any supervision or appeal in the
discharge of duties which often involve points
of difficulty, makes it indispensable that re
cognized principles and practice of ordinary
justice should be observed. The taxation was
conducted as a domestic administrative matter
entrusted to the uncontrolled discretion of the
Board advised by their solicitor ; notice was
treated as unnecessary, and inquiry as to dis
allowances was regarded as somewhat unreason
able curiosity. This ground of objection also
seems to invalidate the taxation.
5. The last point to be considered-is whether
Goff's Case,
1905, I. R., 121, applies.
That
case decided that a taxing- officer acting as
persona designata
is free from
certiorari,
because
his duty is ministerial, and does not impose
final liability. What is challenged here is not
a taxation certificate, but the order of the Local
Government Board which purports to fix the
sum payable as the result of taxation.
In my
opinion, if the objections I have discussed are
well founded, the order was such as to be
subject to
certiorari.
Section 31
refers to rules as to payment as
well as taxation, and the order is an order
relating to payment.
As I think the order
must be quashed on the above grounds of
substance, I need not consider whether its
ambiguous and uncertain character in point of
form might not also lay it open to impeach
ment.
MADDEN, J. :—
The order before us has been made by the
Local Government Board under the powers
vested in them by the 3ist section of the
Labourers (Ireland) Act, 1906, by which the
Board is given power to "provide for the taxa
tion and payment of any costs to be received,
allowed, or paid in relation to the confirmation
by the Local Government Board, and the carry
ing into execution of improvement schemes."
The order not only fixes the amount of costs,
but provides for payment.
It is thus clearly
distinguishable from the certificate of taxation
which came before this Court in
R. (War
Secretary}
v.
Go/(igo$,
2 Ir.R. 121). The Court
held that
cerliorari
did not lie, because the
function of the Taxing Master as
persona de
signata
was ministerial, and his certificate,