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68
The Gazette of the Incorporated Law Society of Ireland.
[DEC., 1908
perse,
created no liabilityto pay.
I observe that
my brother Gibson pointed out that different
considerations might apply to a taxation under
section 52 of the Lands Clauses Act of 1845, a
case which bears considerable resemblance to
that before us.
In my opinion an order by the
Local Government Board providing for the pay
ment of costs contains the element which was
wanting in
Gaff's Case,
and is
the proper
subject-matter of
certiorari.
The costs with
which this order is conversant are the costs of
an owner of land compulsorily acquired under
the Labourers Acts, and are those incurred in
making title to the land, and in complying
with the requirements of the local body by
"
which it was acquired. The rights which are
at issue are those of the owner of land com?
pulsorily acquired, and not those of his or her
solicitor, whose right to his costs as between
solicitor and client cannot be affected by the
action of the Local Government Board.
I need not examine in detail the various
statutes which have been enacted during the last
half century or so for the purpose of enabling
land to be compulsorily acquired for purposes
of public utility. The tendency has been
especially in later years to extend widely, in
different directions, the classes of purposes to
which this legislation has been applied. But
the entire system of legislation has been based
upon the principle of indemnity to the indi
vidual landowner, both as regards compensa
tion for the land compulsorily acquired, and
the costs incurred in making title to the body
by which it is acquired. The procedure under
the Irish Statute engrafted in the Lands Clauses
Act (the Railways (Ireland) Act, 1851) was in
tended to secure to the landowner the full value
of the land taken, to which indeed arbitrators
were, at one time, in the habit of adding 10
per cent, in consideration of compulsory sale.
The statutes were "equally clear as regards his
right to indemnity in the matter of costs, com
mencing with section 82 of the principal Act
(8 & 9 Vict., c. 18). By this section the con
veyancing costs of the owner are to be paid by
the promoters of the undertaking. The widest
possible interpretation is adopted in this sec
tion, so as to secure a complete indemnity for
the owner, and the 83rd section for the taxa
tion of those costs, when the parties do not
agree, by the taxing masters of the Court, at
the expense of the promoters of the under
taking. This section, which' was incorporated
in the Railways (Ireland) Act of
1
85 i, regulated
the taxation of conveyancing costs in proceed
ings under that Act. The I2th section of the
amending Act of 1864. (27 & 28 Vict., c. 71)
simplified procedure by making conveyancing
costs taxable by a taxing master of the' Court
of Chancery on the requisition of the Com
pany, but did not in any way affect the rights
of the owner.
The costs of obtaining an order for an im
provement scheme, and carrying it into effect,
occupy a different position from the convey
ancing costs of the owner.
An argument
has been addressed to us, founded on the i2th
|
section of the Labourers Act of 1885, and on
|
the General Order of 1887, made under its
provisions, but they have no relevance to the
question before us. This statute and order
I
relate to a distinct class of costs. Under the
j
first Labourers Act—that of 1883—opposition
i
to a Bill confirming a provisional order was
by petition to Parliament, and the Committee
to which the petition was referred had power
to award costs to the promoters or .to
the
opponents of the Bill. Costs so awarded are
taxable under 28 & 29 Vict., c
27, by the
Parliamentary taxing officer.
By the i2th sec
tion of the Labourers Act of 1885, the juris
diction of Parliament in relation to provisional
orders under these Acts was transferred to
the Privy Council. Sub-section 6 provided that
the costs of the parties should be in the dis
cretion of the Lord Lieutenant in Council,
who was empowered to make general rules
for carrying the Act into effect,
including
" fixing
the amount of any
fees, and
the
taxation and payment of any costs
to be
taken, allowed, and paid in relation to the
confirmation of provisional orders."
It was
necessary
to make
special
provision
by
General Order for
the
taxation of these
costs, as was done by the Order of 1887,
inasmuch as no statutory provision existed for
their taxation by the taxing officer of the
Court.
The conveyancing costs of an owner must
also be distinguished from another class of
costs, the taxation of which is now regulated
by 58 Vict., c. ii (1895), the application of
which is limited to " costs of and incidental
to the inquiry or to the arbitration and award "
when
compensation
is assessed under the
Lands Clauses Acts, or any amending Act by
a jury or by arbitration. Taxation under this
section differs from that applicable to owners'
conveyancing costs as regards both subject-
matter and the position of the taxing officer,
who acts, not as the officer of the Court, but
as
persona designala,
to whom the Legislature
had transferred the duty of taxation.