56 / 216
48
The Gazette of the Incorporated Law Society of Ireland.
[FEBRUARY, 1922
Legal Decisions.
CHANCERY DIVISION.
(Before POWELL, J.)
In
re
THE
RATHMINES
AND
RATHGAR
IMPROVEMENT COMMISSIONERS and FIELD.
1921, July 5.—
Solicitor—Costs—Taxation
—
"
Drawing documents "
—
Case for opinion
ofCounsel—General Order under Solicitors'
Remuneration Act,
1881,
Schedule II.
Drawing a case for counsel in contem
plation
of
litigation comes within
the
expression : " drawing .... other documents "
in Schedule II. of the General Order, 1884,
made in pursuance of the Solicitors' Re
muneration Act,
1881, and
is properly
charged for at 2s. a folio,
In re Mahon
[1893]
1 ch., 507, and
In re. Morgan
[1915] 1
ch.,
182, followed.
Summons to review taxation.
Alexander Field lodged objections to the
Taxing Master's partial disallowance
of
certain items in a bill of costs. The objections
were in respect of items 24 and 26, which
dealt with a case submitted to Counsel to
advise on the construction of a Will under
which certain property in question in this
matter was disposed of. Alexander Field's
contention before the Taxing Master was
that the items in question came within
Schedule II. of the General Order, 1884,
made in pursuance of the Solicitors Remuner
ation Act, 1881.
It was submitted that the
case for the opinion of Counsel represented
by the items was an ordinary case, and that
the Solicitors were entitled to charge two
shillings per folio for drawing the case and
eightpence per folio for engrossing the same,
and the case not being an extraordinary case
within the meaning of the Schedule,
the
Taxing Master had no discretionary power to
increase or diminish the authorised charge.
The ruling of the Taxing Master on the
objections was as follows :—" I overrule the
objections, as, in my opinion, I am bound
by the decision of the Master of the Rolls
in
In re O'Hagan.
Were it not for this
decision
I would, having regard
to
the
changed practice of the Taxing Masters in
England,
and
the
decisions
hereinafter
referred to, be disposed to allow the fee as
charged. The case for Counsel charged for
is one carefully drawn, dealing with con
veyancing and questions of title and, in my
opinion,
requiring considerable skill and
attention.
It has been pressed on me that
In re O'Hagan
has from time to time been
differed from both by Judges in this country
and in England, and I was referred to the
following cases :—In Ireland,
Todd'and Mark
v. McKinlay,
in which the late Chief Baron
held that conditions of sale were chargeable
for under Schedule II.
It appears from the
correspondence the Master of the Rolls had
with the Taxing Masters in England that it
was their practice at that time to tax costs
of cases for Counsel under the old Schedule,
and not under Schedule II., but after the
decision of
In re Mahon
they changed their
practice, and they from that date have taxed
the costs Of cases for Counsel under Schedule
II. This practice has been approved 6f by
Mr. Justice Neville as late as 1914 in
In re
R. P. Morgan and Co."
Powell, J.—It appears from the cases cited
in
the Taxing Master's ruling
that
the
practice in England has been completely
changed by the two decisions
In re Mahon
and
In re R. P. Morgan and Co.
In the
latter case Neville, J., a most careful Judge,
held that drawing a case for Counsel in
contemplation of litigation comes within the
expression " other business " in Rule 2 of
the General Order, Solicitors Remuneration
Act, 1881, and, being a " document " within
Schedule II. thereto, was properly charged
for at 2/- a folio.
I am bound to say that
I agree with him.
I am glad to be able to
follow the later decisions.
In my opinion a
case to Counsel is a " document." It is often
the most important document in the whole
gamut of the litigation for the client, and I
think
that Solicitors
should
be
fairly
remunerated. That is my own view, and
having regard to the later decisions and the
change of practice in England, I am of
opinion that the ruling of the Taxing Master
should be overruled.
(Reported, 1922, 1 /.
R.,
page 13.)
[NOTE.—In
accordance with
the above
decision the charge for drawing case to
Counsel would be at the rate of 3/— per
folio, and I/- per folio for engrossing same,
where the work has been done since the