The Gazette 1987

GAZETTE

MARCH 1987

refused to make the conditional order

absolute and the Prosecutors appealed to

the Supreme Court.

The Supreme Court rejected the view of

the High Court that Order 99 Rule 15(e) con-

ferred on the Taxing Master the power to

tax without any Court order, as between

Solicitor and client in addition to the juris-

diction which he had to tax bills referred

under the 1849 Act. The Court noted that

the jurisdiction of the Rules Committee was

found in Section 36 of the Courts of Justice

Act 1924 and that the Eighth Schedule of

the Courts (Supplemental Provisions) Act of

1961 provided for the jurisdiction of the

Taxing Master.

Referring to

East Donegal Co-Operative -

v- The Attorney-General

(1970) IR 317 and

City View Press Ltd. and Another -v- An

Chomhairle Oiliuna and Others

(1980) IR

381 the Court held that while the powers

duties and functions of the Taxing Master

might be changed or extended by statute

and perhaps by rule of Court, the authority

to do so by rule of Court must derive from

the statute which creates the rule making

authority. There was no such enabling pro-

vision in section 36 of the 1924 Act. The

Court noted that the combined effect of

Sections 2 and 6 of the 1849 Act in respect

of a Bill of Costs for Solicitor and Client

charges duly delivered would appear to be

that:

(1)

The Solicitor cannot lawfully sue for

one month after delivery.

(2)

The client has a period of twelve

months within which to demand and

obtain taxation.

(3)

After the expiry of twelve months or

after payment of the amount of the

bill, then the Court may, if the special

circumstances of the case appear to

require the same, refer the bill to tax-

ation, provided the application to the

Court is made within twelve calendar

months after payment.

(4)

After the expiry of the latter period,

there is no statutory power to refer

for taxation.

The Prosecutors appeal was allowed.

The State (Gallagher Shatter) -v- de Valera,

Supreme Court, 20 December 1984 (per

McCarthy J.), (1986) ILRM 3.

John Buckley

COSTS

Solicitor and Client Bill -

Requirement of Superior Court Rules

The Plaintiff's father engaged the

Defendants to bring proceedings on behalf

of the Plaintiff who was under age at

the time, for damages for injuries sus-

tained in a motor accident. The Plaintiff

came of age during the course of the

proceedings.

The Defendant had advised the Plaintiff's

father and later the Plaintiff herself that over

and above the party and party costs which

he would recover from the other side there

would be certain Solicitor and Client costs

payable by the Plaintiff. The proceedings

were settled for the sum of £19,000. When

the Defendant received the settlement

cheque he deducted £1,500 in respect of

such costs and sent on the balance of

£17,500 to the Plaintiff. The Defendant

claimed that at the time of the settlement

the Plaintiff had agreed to this figure of

£ 1,500 for Solicitor and Client costs but the

Plaintiff denied this. The Plaintiff sought

particulars of the fees in July 1984 from the

Defendant who declined to furnish parti-

culars unless the Plaintiff agreed to pay the

fees payable to the Legal Costs Accountant

for preparing the bill. After the intervention

of the Law Society the Plaintiff furnished in

September 1984, a document stated to be

Bill of professional fees, outlay and

V.A.T. Orla Smyth in account with Thomas

Montgomery & Son." The Law Society

advised the Plaintiff that she could either

have this bill taxed or could insist on being

furnished with an itemised Bill of Costs and

if she decided on the latter course she could

not be billed with the fees due to the Legal

Costs Accountant.

After an interval of a little over a year the

Plaintiff's father wrote on her behalf seeking

an itemised bill and the Defendant again

sought payment of the Legal Costs

Accountant's fees.

On 16 April 1986 the Plaintiff signed a

requisition to tax under Order 90 Rule 15(e)

of the Rules of the Superior Courts 1962 but

no taxation could take place without an

order of the Court in view of the decision

of the Supreme Court in the State (Gallagher

Shatter) -v- De Valera (1986) ILRM.3, The

Plaintiff issued a Special Summons seeking

an order pursuant to Section 2 of the

Attorneys and Solicitors (Ireland) Act 1849

referring the Bill to taxation and seeking the

furnishing of a detailed Bill of Costs for

taxation.

The Court accepted the Plaintiff's

evidence that she had been advised that she

would be liable for Solicitor and Client costs

up to a maximum of £1,500 but had not

agreed to pay the sum of £1,500. The Court

rejected the Defendants argument that the

Plaintiff was not entitled to the Order

because twelve months had elapsed since

the delivery of the bill in September 1984

and payment of the £ 1,500 several months

earlier. The Court referred to the

requirements of the Superior Court Rules,

Order 99 Rule 30(5) which provided that:

1. The Solicitor cannot lawfully sue for one

month after delivery.

2. The Client has a period of twelve months

within which to demand and obtain

taxation.

3. After the expiry of twelve months or

after payment of the amount of the bill,

then the Court may, if the special circum-

stances of the case appear to require the

same, refer the bill to taxation, provided

the application to the Court is made

within twelve calendar months after

payment.

4. After the expiration of the latter period,

there is no statutory power to refer for

taxation,

and noted the view of Buckley L. J. in the

case of

re Osborne and Osborne

(1913)

3 KB 862 where he stated " a Solicitor's bill

against his client for costs in an action in

which party and party costs are recoverable

against the opposite party ought to contain

the whole bill of the fees, charges and

disbursements in reference to the business

to which it relates and not merely a bill of

the extra costs chargeable as between

Solicitor and Client . . . a Solicitor should

deliver a bill of the whole costs giving his

Client credit for the sum received for party

and party costs. Accordingly in

Cobett -v-

Wood

(1908) 2 KB 4 20 it was decided in

this Court that a bill not containing the items

allowed on taxation between party and

party was not a sufficient bill within the

Solicitors A c t ." The Court held that the bill

furnished in this case by the Defendants

was not such a bill as constituted a bona fide

compliance with the 1 8 49 Act and

accordingly the provisions of Section 2

limiting the reference to taxation to

twelve months from the delivery of the

bill did not apply. Neither did the provisions

of Section 6 apply as no bill as was

envisaged by Section 2 had been paid by the

Plaintiff.

The Court accordingly directed the

Defendant to furnish to the Plaintiff a

detailed Bill of Costs and that on such

Bill being delivered it would be open to

the Plaintiff to have the Bill referred to

taxation.

Orla Smyth -v- William J. Montgomery The

High Court (per Blayney J.)

July 1986.

John Buckley

GUARANTEE

Bond — Rights of Surety — ObUgetione

of Creditor — Terms of Contrect

J. J. Murphy and Company Limited was

engaged in the warehousing of spirits and

beers which were liable to excise duty when

delivered from a warehouse. By Deed of

Bond executed under seal the defendant

bound itself to pay to the Minister for

Finance on behalf of the Revenue Com-

missioners the sum of £1.4 million con-

ditional upon the failure of J. J. Murphy and

Company Limited to pay the excise duties

chargeable in respect of spirits delivered

from bonded warehouses on which duty

was not paid on delivery but was deferred

for a period certain by agreement with the

Revenue Commissioners. The defendant

entered into a similar bond in respect of

excise duty on beer. Subsequently the

Revenue Commissioners

demanded

payment of, and obtained judgment in the

High Court for, the full sum of £504,416

being the total amount due in respect of the

spirits and beer. The accuracy of the total

was not in dispute.

Section 24 of the Excise Collection and

Management Act, 1841 (4 Vict. cap. 20)

provides inter alia that all goods and com-

modities in respect of which any excise duty

is imposed by law, and all materials for

producing such goods and commodities, in

the custody or possession of the person

carrying on such trade, or in the custody or

possession of any factor, agent or other

person in trust for or for the use of the

person carrying on such trade, shall be

chargeable with all excise duties which,

during the time of such custody or

possession shall have become chargeable or

be in arrears or owing from the person

carrying on such trade; and shall be subject

to all penalties and forfeitures which during

any such custody or possession shall be or

shall have been incurred by the person

carrying on such trade and all such goods

and materials shall remain liable to all such

duties, penalties and forfeitures; and it

should be lawful to levy thereon such duties,

penalties and forfeitures, and for that