53 / 144
done nothing more than to send instructions to
Counsel by whom the drafts had subsequently
been prepared. The charges made in the bill,
based on the usual rate per folio, for drawing the
memorandum and articles of association, were
substantially higher than the fee charged by
Counsel for drawing the documents. On these
facts, the solicitor opposing the bill objected to
the allowance of any charge by the solicitor for
drawing the documents, on the ground that the
work charged for had not, in fact, been done by
him, and submitted that the greatest amount that
could be charged for drawing the documents was
the fee paid to Counsel for doing that work. The
Taxing master overruled
the objection and
allowed the solicitor's charges for drawing the
documents, lg_jnclude the fee paid to Counsel,
The company appealed to the High Court against
the decision of the Taxing Master. In deciding the
appeal Overend, J., held that although
the
respondent had not personally performed any oi
the work claimed in the item of the bill which was
the subject of the appeal, he was entitled to charge
for it as if he had, in fact, personally performed it.
The argument of the appellant was based on the
ground that a solicitor cannot charge for any
work which he has agreed to carry out and which
is not performed by him personally or by
office employees. His Lordship did not accept that
argument as a general proposition. He held that
the obligation of the solicitor in the case before
him was either to prepare himself
or to provide
draft articles and a draft memorandum of
association.- By whom the documents were, in
fact, prepared, or what fee or remuneration was
agreed upon between the solicitor and any third
party for their preparation was immaterial to the
question of the costs payable by the client to the
solicitor, if the solicitor provided the draft articles
and memorandum in accordance with his instruc
tions and accepted
responsibility
for
them.
His Lordship, therefore, disallowed the objection
against the Taxing Master's decision and allowed
the solicitors' charges in the bill of costs. The
decision is an important one for the profession,
and it is to be hoped that it will be officially
reported. It may appear at first sight to admit the
principle of sub-contracting into the relations
between solicitor and client, but it would be dan
gerous to push its implications too far. The sub
contracting, if it can be so called, involved in
this case was between solicitor and counsel. It is
very questionable whether a solicitor whose
services had been retained for the purposes of
litigation by a particular client could lawfully
delegate the conduct of the proceedings to another
solicitor not
in his permanent employment,
without the knowledge and consent of the client.
This is an important decision which is worth
study by the profession.
Charging Orders for Costs.
THE second decided case affecting solicitors'
rights,
In re Blake-Clutterbuck v. Bradford
(61 T.L.R. 106), dealt with the important question
whether a judgment for costs only is a judgment
for "property recovered or preserved" so as to
entitle a solicitor to a charging order thereon for
his costs under section 69 of the Solicitors' Act,
1932. This section repeats, in less ambulatory
language, the provisions of section 3 of the Legal
Practitioners (Ireland) Act, 1876. The substantial
,
effect of each section is to enable a Court before
which any action has been heard to declare the
solicitor, by whom the proceedings for any party
have been conducted, to be entitled to a charge for
his costs against the property preserved or
recovered through his exertions. In Dallow v.
Garrold (14 Q.B.D. 543) a judgment had been
obtained for a sum of money and costs and it was
held that both the debt and the costs could be
made the subject of a charging order for the costs
of the action on the application of the plaintiff's
solicitor. In the later case of Johnston v. McKenzie
(1911 2 I.R. 118) the King's Bench Division held
that a judgment for costs alone was a judgment
for property recovered within the meaning of the
Legal Practitioners (Ireland) Act, 1876, but
O'Brien, L. C. J., expressed doubt on the point,
and referred in the course of his judgment to the
fact that it had been conceded in argument. The
recent decision of the English Court of Appeal has
settled the question in favour of solicitors. The
facts were that a legatee under a will, who also
claimed to be a creditor of the estate, had brought
certain proceedings against the executors for the
recovery of the amount of his claim as a creditor.
The will contained a stringent condition with
regard to raising questions, binding upon the
legatee. The executors took out a construction
summons asking for the decision of the Court as
to whether the legacy failed having regard to the
condition in the will. The Court decided that the
legacy had failed, having regard to the condition
and the proceedings instituted by the legatee, but
made an order entitling him to be paid his costs
of the proceedings out of the estate. The solicitor
for the legatee applied for a charge on the amount
of the costs, when ascertained, on the ground that
it was property recovered or preserved within
section 69 of the Solicitors Act, 1932. The applica
tion was refused by the High Court, but this
decision was reversed by the Court of Appeal.
59