132 / 324
appeal by the Marchioness of Winchester, from an
order in chambers on April nth, 1956, granting
leave to solicitors, Messrs. Polak & Co., to withdraw
a'bill of costs delivered to the appellant on September
yth, 1955, and to deliver in substitution therefor
a new bill of costs differing only from the original
bill in including disbursements to counsel included
in the original bill but not paid at the date when the
bill came before the taxing master. Leave to appeal
was given by the Court on May yth, 1956.
Mr. Curtis-Bennett, for the appellant, said that
when the original bill came before the taxing master
it was discovered that counsels' fees had not been
disbursed and the solicitors applied for an adjourn
ment so that a new bill could be substituted.
Im
mediately the adjournment was granted, counsel's
fees were paid ;
the fees amounted to a large pro
portion, £302
145.
out of £551
145.
3d., of the bill.
The main ground of appeal was that the judge had
no jurisdiction to allow the solicitors to substitute a
bill in the manner ordered, and the second ground
of appeal was that, in so far as the Judge had a
discretion,he had exercised it on the wrong principles.
No imputations of any kind were made against the
solicitors and he, counsel, was anxious to keep
away from the merits of the matter;
it sufficed to
say that the detailed taxation as and when it took
place would be most bitterly contested by the
appellant.
Per Jenkins, L.J. :—" In my judgment if the Court
was satisfied that the case was one in which the
solicitor had acted honestly and merited assistance
the inherent jurisdiction of the Court extended to a
withdrawal of a bill already delivered, where counsel's
fees had not actually been paid, and the substitution
of another bill, by which time the fees would have
been paid.
On the question whether the present case was one
in which
the Judge should have exercised his
discretion in favour of the solicitors, I agree that
this was a borderline case, but the Judge was
justified in coming to the conclusion that he could
exercise his discretion in the solicitors' favour, and
I feel that if I had been sitting as a Judge of first
instance I would have come to the same conclusion."
(Polak
v.
Marchioness of Winchester — [1956]
2.
All E. R-. 660).
County Manager entitled to separate costs on appearance
before Local Inquiry directed by Minister for Local
Government.
THE Minister for Local Government directed that a
local inquiry be held into the performance by
D. McC., the County Manager for the County of
Cavan, of the executive functions of the Counril.
By Order dated the 3rd October, 1950, the Minister,
in the exercise of the powers vested in him by s. 90
of the Local Government Act, 1946, directed that
D. McC. might appear separately at the inquiry.
This Order did not purport to limit the cost of the
separate appearance. The County Council refused
to requisition taxation of D. McC.'s costs and on the
ist February, 1951, the Taxing Master taxed the
costs at £2,488 iys. 2d.
By letter dated the i5th
January, 1952, the Minister in purported pursuance
of s. 90 sub-s. (2) (/>) of the Local Government Act,
1946, purported to limit to £900 the sum to be paid
by the County Council to D. McC. for his costs and
on the jth April, 1952, the County Council sent to
D. McC. the said sum of £900.
Held by Supreme Court (Maguire C. J., Lavery
and Kingsmill Moore, JJ., O'Byrne J., dissenting)
reversing Dixon J., that the Minister's direction of
the 15th January, 1952, purporting to limit the cost
of the County Manager's separate appearance at
the inquiry was ultra vires and void, and that the
plaintiff was entitled to the declaration sought and to
judgment against the Cavan County Council for
the sum of £2,488 iys. 2d.
Per Lavery J. :—" The Minister has ample powers
to punish an officer of a local authority who has
failed in his duty and it is satisfactory to know that
he does not consider that condemning him to bear
his reasonable legal costs and expenses is one of
them. No indication was given by Counsel as to
what they submitted the Minister should take into
consideration, and, of course, none as to what he
had considered in the present case.
In the exercise of the power, whatever may be its
nature and extent, the Minister is, of course, bound
to act according to the rules of reason and justice,
not capriciously or arbitrarily, but on judicial grounds
and for substantial reasons.
The Court cannot,
however, control the exercise of the power in the
absence of evidence as to the grounds on which
the Minister acted and it is not claimed that there is
any material on which the Court could enter into
an inquiry. The only question, therefore, is when
the power may be exercised.
There are many considerations which lead me,
with reasonable certainty, to the conclusion that
the power should ordinarily be exercised when the
order under sub-section i is made and that it certainly
cannot be exercised after
the Manager has, in
pursuance of the order, appeared at the inquiry
at least in so far as liability has been incurred.
When, in pursuance of an order the County
Manager appears—as may be his duty and certainly
is his necessity—costs are incurred and if no limit
has been imposed—lie is on the strictest reading
of the section entitled to be paid these costs, being
reasonable."