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The Gazette of the Incorporated Law Society of Ireland. [NOVEMBER, 1913
Recent Decisions affecting Solicitors.
(Notes of decisions whether in reported or
unreported cases, of interest to Solicitors, are
invited from members.}
KING'S BENCH DIVISION.
(Before Boyd and Kenny, JJ.)
DONNELLY
V.
MALONE.
May 13, 1913—
Costs—Solicitor and client—
Review of taxation—Attendances—Special
fee—Written authority of client—OrderLXV.,
v.
20,
Where a solicitor attends personally at the
hearing of an action on the written instructions
of his client, and thereby incurs expenses for
which he charges in his bill of costs :
Held,
the Taxing Master has discretion in
making disallowances. To entitle the solicitor
to such costs he must not only show a special
contract with his client, but that they were just
and reasonable. The authority given by the
client must be regarded as qualified by the
discretion in the Taxing Master to disallow.
'
•
Motion on behalf of the solicitor for
defendant, in a action of
M'Donald
v.
Don-nelly,
for review of taxation of solicitor
and client costs. The action was brought on
foot of a promissory note for £245 15s 10d.,
dated 1st February, 1904, made by Donnelty
and payable on demand to Margaret
M'Donald. of South Bank, England. The
defendant, on the 14th September, 1912,
gave a mortgage to his solicitor to secure the
costs of the action. On the 28th November,
1912, after the pleadings in the action had
been closed, Donnelly consulted Mr. Malone
with reference to the date of the trial, and
Mr. Malone told him that notice of trial was
served for the 7th December, 1912, The de
fendant, Donnelly, signed an authorisation
on the 28th November, 1912, in the following
terms :—" I authorise and request you to
attend personally in Dublin on the hearing
of this action, and also to attend any consul
tation that counsel may direct." The appli
cant, as solicitor for defendant, attended per
sonally in Dublin from the 7th December,
1912, when the case first appeared in the list,
till the 18th December, 1912, on which day
it was tried (the hearing occupying only part
of one day), and judgment was given for the
plaintiff, Mrs. M'Donald. On taxation the
items of the bill of costs objected to were
(Nos. 75 and 76. covering attendance by soli
citor in Dublin on the hearing for nine days
at
£3
3s. per day, amounting to
£28
7s., and
train fare and car hire /3 18s. 4d. Objection
was made that the personal attendance of
the solicitor was unnecessary, as there was
no special difficulties in the case. The rulings
of the Taxing Master were as follows :—
" 10s. a day for eight of the nine days he was
in Dublin, and
£2
2s. for the day verdict was
given." He disallowed entirely railway ex
penses on the ground that the solicitor's per
sonal attendance was not necessary, and was
not directed by counsel, and were not just
or reasonable or proper under the circum
stances, and the Taxing Master based his
rulings on
Cramsie
v.
Greer,
[1894] I. R. 136 ;
also on Order LXV., r. 20.
BOYD, J.—In my opinion, and I believe in
that of my brother Kenny, the decision of
the Taxing Master ought to be affirmed. I
think rule 20 of Order LXV. lays down what
shall be done in all cases where it is sought
that special costs shall be allowed to a soli
citor. The second part of the rule is as
follows :—" With regard to charges of such
a nature that they could not be taxed as
between party and party, such costs shall in
no case be allowed in whole or in part, unless
incurred at the special previous request of
the client signified in writing, or unless sub
sequently and before taxation ratified by the
client in writing, and it shall distinctly appear
that the client was made aware that such
charges could not be taxed or recovered as
between party and party ; but such charges
shall only be allowed if and so far as the
Taxing Master shall consider it just and
proper to allow the same." I am not aware
that any such information was afforded the
client in this case. The plaintiff appears to
have known nothing of his liability, and
whether or not the costs could be taxed as
between party and party. I hold the Taxing
Master was right.
KENNY, J.—1 concur with my brother
Boyd. These allowances of costs depend on
Order LXV., r. 20, which has been read by
him. There are three limbs in the second
portion of that rule. There is a proviso in
respect of charges for work and outlay pro
perly done or made if the same be of such a
nature that charges in respect thereof might