137 / 216
January, 1943]
The Gazette of the Incorporated Law Society of Ireland
35
SOLICITORS' COSTS—GROSS SUM.
General Order of 15th November, 1920.
Our attention lias been drawn to the
fact that the note in the December issue
of the Gazette on the English decision in
re
Nabarro (on the interpretation of the English
•
equivalent to the above Order) might suggest
without a careful perusal of the Order, that
the scope of the decision is wider than it is
in fact. The principle laid down in
re
Nabarro
in its application tc ihis country relates only
to the business specified in the Order, namely,
business the costs of which are regulated by
Clause 2 (c) of the General Order made under
the Solicitors' Remuneration Act, 1881.
It
does not affect the principle operating in
regard to contentious business; or any non-
contentious business not covered by Clause
<.
2 (c).
It would appear that the remuneration
'/
for business not within Clause 2 (c) is still
governed by the limitation stated in Cordery,
and
that accordingly a client who has
received a bill of costs lor such business
for a gross sum may require it to be fur
nished in detail and taxed without the risk
of having to pay the excess should the
detailed bill tax to more than the gross sum.
LIABILITY OF SOLICITOR FOR HONEST
MISAPPLICATION OF TRUST FUNDS.
Solicitors acting for trustees will welcome
the decision, in Williams-Ashman
v.
Price &
Williams (1942)
1. Ch.219., in which the
Plaintiff, who was a beneficiary iinder a
trust, sought to make the Defendants, who
were Solicitors
for
a
deceased
trustee,
personally liable for an honest misapplication
of the trust funds on the instructions of their
client. The Plaintiff's argument was based
on
the
following passage
in Underbill's
" Trusts," 9th Edition, page 548—" Where
trust funds come into the custody and under
the control of a Solicitor, or indeed of any
one else, with notice of the trust, he can only
discharge himself of liability by showing
that the property was duly applied
in
accordance with the trusts." The Solicitor
defendants who, some years previously had
prepared, and still retained, the trust deed,
had forgotten
its existence, and on
the
trustee's instructions had received portion
of the trust monies and applied them for
purposes unauthorised by. the trust deed.
Bennett, J., held that although one of the
defendants had acted, perhaps, incautiously
none of them had inter-meddled by doing
acts characteristic of a trustee and outside
their duties as Agents in such a manner as
to become
trustees
de.
sow
tori,
and the
action failed.
COSTS OF SOLICITOR PRACTISING WITH-
OUT LICENCE.
Iri the case of Cooling
v.
the Minister for
Finance (as yet unreported)
the plaintiff
obtained judgment for damages with unascer
tained costs against
the defendant.
His
solicitor served the defendant with a bill of
costs and issued a summons to tax. After
the costs had been taxed and certified the
Defendant discovered that the Plaintiff's
Solicitor had not in force a practising Certifi
cate. He refused to pay the costs and by
consent the matter was brought before the
Court on Notice 'of Motion.
It was held by the President of the High
Court that an objection to the payment of
costs under Section 48 of the Solicitor's
(Ireland) Act, 1898, by a Defendant must be
made before
the
issuing of
the Taxing
Master's Certificate.
The case, he said,
turned on the meaning of the word " recover "
in Section 48 which was "recover in an
action ".
It was held that the certified costs
had merged in the judgment and that unless
the judgment was set aside it must be acted
upon.
It was too late at that stage to take
the objection.
It should be noted that the reasoning of
the decision, which was based on the merging
of the costs in the judgment already entered
in the action, is not applicable to the Taxation
of Costs by a client on a reqiiisition to tax
where there has not been previous judgment
for the costs.
Furthermore, in Cooling's case it would
appear that the judgment for the damages
and costs was in favour of the client and that
the judgment did not decide whether the
Plaintiff's Solicitor would be entitled to
enforce payment to him by his client of the
costs so recovered if paid to the Plaintiff.
y '
&^&