186 / 736
Taxation of Costs: Review of Taxation
Following of Trust Funds
This was an application to the High Court to
review the decision of the Taxing Master. Coun
sel had advised that two Senior Counsel be re
tained, but the solicitor decided to brief only
one. The solicitor having been unsuccessful, his
bill of costs was prepared and it came before the
Taxing Master for taxation. The Taxing Master
reduced senior counsel's brief fee and refreshers
and also reduced junior counsel's brief fee and
refreshers proportionately. He disallowed objec
tions on review of taxation.
His Lordship considered the Rules of 1893,
1905 and 1962 and said that the Court when
hearing an application to review is now obliged
to consider and adjudicate upon the amounts
allowed by the Taxing Master for any items
which appear in the bill. The court must have
regard to the fact that the Taxing Masters have
more knowledge and experience of costs than
most judges and should not lightly reverse a deci
sion of a Taxing Master on the amount allowed
for any item in the bill. This did not, however,
absolve the Court from the obligation imposed on
it by the Rules of considering the matter, because
the same evidence is before it as was before the
Taxing Master. His Lordship accordingly did not
regard himself as precluded by earlier decisions
from reviewing the amounts allowed by the
Taxing Master on any bill whether it be between
party and party or between solicitor and client.
On a taxation of a bill between solicitor and
own client the amount of charges which were not
expressly or impliedly approved by the client
should be allowed if they were reasonably. The
fees in this case were reasonable because :
1. While it is the usual practice in Ireland to
brief two senior counsel in actions in the
Court the retainer of one senior counsel only
in circumstances in. which two seniors would
be allowed on taxation of a bill as between
party and party is a most material element
in the determination of counsel's fees.
2. The fees charges were not of an unusual
nature.
3. The case raised difficult questions of law,
4. The solicitor thought the fees were reason
able and paid them.
(Martin J. Lavin v. Bridget Walsh and in the
matter of a Bill of Costs, Bridget Walsh to J. F.
Williams & Co.).
In 1960 James Birrell Limited introduced a
pensions and insurance scheme for their
employees. In the arrangements which they made
with the insurance company they provided that if
the scheme were discontinued, members benefiting
under the scheme, if they were in the company's
service at the date of discontinuance, would be
entitled to the full accrued benefits secured by
the contributions up to that date. The company
later intimated to the insurance company, though
not to the employees affected, the discontinuance
of the scheme and on 3rd May 1965 the insurance
company drew a cheque for £1,915 17s. in favour
of the ocmpany. This represented the benefits to
which the employees were entitled on discon
tinuance of the scheme. The company paid that
cheque into its No. 2 bank account. On 15th
October 1965 the company went into liquidation.
From the date of lodgment of the cheque until
the account was closed by the liquidator, the
credit balance on No. 2 account was at no time
less than the sum of £1,915 17s. On the other
hand, the company's No. 1
account was consis
tently overdrawn to an extent in excess of the
credit balance on No. 2 account.
In the liquidation the employees claimed to be
ranked in full for the sum of £1,915 17s. The
liquidator, however, gave them an ordinary rank
ing for their claims. The employees appealed
against the decision of the liquidator.
In sustaining the appeal, the Lord Ordinary
(Lord Fraser) said :—
"The main argument for the liquidator pro
ceeded on the basis that the tempus inspiciendi
was the date of liquidation. The argument was
that the company itself before liquidation had
applied the cheque towards payment of its debt
to the bank. . . .
But in my opinion, that is not
what occurred. ... It may be that if the bank
had wished to do so it could have insisted on sett
ing off the sum at credit of No. 2 account against
the sum at debit of No. 1 account and thereby
reduced the total amount of the company's in
debtedness. But the bank did not in fact do so
and the two accounts remained distinct until
several months after the liquidation had begun."
Lord Fraser in his judgment noted and disposed
of a further argument for the liquidator that the
tempus inspiciendi was the present and that since
July 1966, the sum due to the employees had been
"so inmixed with the company's funds as to be
incapable of disentanglement". His Lordship re
fused to accept that contention on the ground
that if it were to prevail then the liquidator by
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