77 / 132
DEC., 1908]
The Gazette of the Incorporated Law Society of Ireland.
Such was the position of the owner when
the Act of 1906 was passed. He had a statu
tory right of indemnity expressed in the amplest
terms, against costs incurred by him in making
title to the lands compulsorily taken, and he
had a statutory right to have these costs taxed
by the taxing officer of the Court, on the scale
laid down by the rule-making authority, sub
ject, in certain cases, to an appeal to the
Court. The amount of these conveyancing
costs are not within the control of the owner
or of his solicitor.
They are mainly determined by the degree
of particularity with which the solicitor for
the promoters of the undertaking requires the
owner's title to be deduced and vouched. The
costs properly and necessarily incurred in
proving the title to land bear no proportion to
the extent and value of the estate.
Indeed, if
I was called on to establish a proportion, I
would suggest the inverse ratio of their respec
tive amounts, for large estates are commonly
dealt with by carefully-drawn instruments.
The rights of the owner as regards costs as
well as purchase-money being clear and un
disputed, and such as could only be abrogated
or abridged by clearly expressed legislation,
I proceed to consider the 3ist section of the
Act of 1908, in view of the state of the law
when it was passed.
It enacts that the Board
may, by rules, provide for the taxation of the
costs with which it is conversant.
Taxation by whom ?
According
to the
Solicitor-Genera] by
the nominee of the
Board, who may be their solicitor, or any
person to whom they may think fit to entrust
the work. According to Mr. Ronan by the
Board itself. The latter view is not taken by
the Board, for by the 55th Order, purporting
to be made under the statute, it is provided that
where costs are payable by a council to an
owner or lessee of land in respect of giving
proof of title, these costs (except in certain
cases) shall " be referred to the Board, who
shall arrange for the taxation of the same."
In the present case what is called the "taxa
tion" was done by the Board itself, who
"arranged for it" by asking their solicitor to
inform them what items in the owner's bill of
costs might reasonably be struck off. The bill j
was never referred to Mr. Mecredy.
If it had
!
been so
referred, I do not suppose for a
moment
that
this
gentleman would have
entered on the mockery of a proceeding so
illusory and unjust as a so-called " taxation "
in
the absence of the solicitor who had
prepared the bill, and who would alone be in
a position to explain a questioned item, and
whose duty it would have been to safeguard
the interests of the owner. There has, of
course, been no taxation of the bill in any real
sense of the term, and if there had been
nothing more in the case, I think that the
order of the Board should be set aside.
I am,
however, clearly of opinion that the 3ist
section has no operation to deprive the owner
of the statutory rights which 1 have stated, by
substituting for the taxing officer of the Court
either the nominee of the-Board, or the Board
itself, over neither of whom this Court could
exercise'any control. The words "arrange
for taxation," in my opinion, mean arrange
for taxation by the statutory taxing authority.
This interpretation is in accordance with the
natural meaning of the words taken by them
selves. I decline to put upon the section a con
struction which it does not necessarily bear,
when the result would be the abrogation of
clearly defined statutory rights by legislation
so obscure that the eminent counsel for the
Board are unable to agree as to its meaning.
I express no opinion upon an important matter
to which my brother Gibson has referred, that
is, whether the Board have power to deal in
any way with the conveyancing costs of an
owner under the terms of section 31, which
relate to costs " to be received, allowed or paid
in relation to the confirmation by the Local
Government Board, and the carrying into
execution of improvement schemes."
KENNY, J.:—
At the date of the passing of the Labourers
Act, 1906, the costs incurred by an owner of
land in deducing title to a plot compulsorily
taken for the purposes of the then existing
Labourers Acts, were taxable by one of the
taxing officers of the Supreme Court, and the
broad proposition is now put forward on behalf
of the Local Government Board that the effect •
of the 3ist section of the Act of 1906 and Rule
55 is to substitute for that tribunal one that is
absolute and unappealable—that is bound by
no scale of fees and charges, and that can
set up for itself a mode of procedure in my
opinion
inherently unfair and
unjust.
If
that contention be correct, the facts of the
present case show that the landowner whose
position
has been
by section n (10) of
the Act differentiated
from
that of other
owners whose lands are compulsorily acquired
under other Acts of Parliament, may be sub
jected to still further loss in having to bear
the burden of a large proportion of the