180 / 216
the prosecution was most reprehensible, and lie
proposed to obtain a transcript of the evidence and
send it to the Law Society. His Lordship took a
serious view of the girl's evidence if true, and if it
• was not true the solicitor ought to be cleared of
such a charge. The case does not appear to have
been officially reported and, as published in the
Times,
the Judge's remarks were divorced from
their context.
There may have been circum
stances connected with this case not disclosed in
the report which were the real basis of the Judge's
condemnation of the conduct with which he was
dealing.
If such circumstances were not present
many will feel that the prohibition laid down by
the Judge was too wide. Most solicitors would be
surprised to learn of any universal rule whereby
merely interviewing any witness, whether already
sub-.poenaed or not by another party to the
proceedings, is regarded as a breach of propriety.
Cases will occur in which common sense will
suggest that it would be improper to seek to
interview a particular witness.
There seems,
however, to be no valid reason why a solicitor,
preparing instructions for Coxmsel for the defence
in a criminal prosecution should be obliged to
relv upon depositions or proofs of evidence taken
down by the police or someone else if he has reason
to believe that they may be incomplete or may
omit to deal with matters within the knowledge
of a witness which he foresees will be important
for his client's defence.
The popular terms,
" witness for the prosecution " and " witness for
the defence," though sanctioned by usage, are
really a misnomer. Provided that he scrupulously
avoids anything which would constitute an abuse
of his privilege the general view of the profession
has been that a solicitor is entitled to interview
any witness whose evidence may be necessary for
the presentation of the facts of his client's case
to the Court.
Withdrawal of Bill of Costs
A solicitor differs from other professional men in
being subject to the provisions of the Solicitors
Acts and, as an Officer of the Court, being under
its jurisdiction in the conduct of his client's
business. One of the disabilities attaching to
his official status is that a Bill of Costs, once
delivered to a client, cannot in general be with
drawn or amended, either so as to increase or
diminish the charges, otherwise than by consent.
A solicitor, on delivery of a bill may expressly
reserve the right to withdraw or alter it on
condition, provided that the condition is such as
can fairly be imposed by a solicitor on his client.
Th^ Court has jurisdiction to permit the with
drawal or alteration of a bill in proper circum
stances. In a recent decided case, In re a Solicitor
and In re Taxation of Costs, 59 T.L.R. 68, a solici
tor was given leave to withdraw a Bill of Costs
furnished to a client and to substitute an altered
bill. He had represented the client in partially
successful litigation and the client had obtained
against his Opponent in the action an order for
payment of certain costs. The taxation of these
costs, as between party and party, had been com
pleted, according to the English practice, subject
to the vouching of Counsel's fees, and portion of
these fees amounting to £298 was still due to
Counsel on the date of the party and party
taxation.
Subsequent to the party and party
taxation, but before payment of Counsel's fees,
' the solicitor furnished to his client a Solicitor and
Client bill which included these fees, but by error
failed to comply with a regulation requiring
unpaid disbursements to be set out in the bill in
a particular manner. He did in fact pay all fees
due to Counsel before taxation of the Solicitor
and Client bill, as a result of which the client
obtained against his Opponent 'a certificate of
taxation, as between party and party, of an
amount which
included
these fees.
On
the
taxation 'of the Solicitor and Client bill, the
irregularity in the setting out of Counsel's fees
was relied upon by the client in order to have them
disallowed. The solicitor, on application to the
Court, was granted liberty to withdraw the
defective bill and to furnish another setting out
the items correctly, but not altered in any other
respect. The Court held that it had a discretion
in the matter, and exercised it in favour of the
solicitor, chiefly because failure to do so would
give the client the pecuniary benefit of the
payments made to Counsel by the solicitor.
Order LXV Rule 45 (c) of the Rules of the
Supreme Court (Ireland) 1905, provides that no
addition or alteration shall be made in "costs after
they have been lodged for taxation, except by
permission or direction of the Taxing Master, so
that it would seem that such an application in
this country need not be made to a Judge in the
first instance.
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