190 / 324
had been brought. On taxation of the costs of the
motion as between the applicants and the respondents
the taxing master disallowed two-thirds of the
brief fees of the applicants' leading and junior
counsel on the grounds that the order for taxation
entitled the applicants to what was in substance a
party and party taxation but on more generous
lines, and that the fees allowed were adequate having
regard to R.S.C., Ord. 65 r. 27 (29).
HELD by Danckwerts, J., the full brief fees of
leading and junior counsel would be allowed in
the costs of the applicants because the order for
costs, being made on a motion to commit for
contempt, was of a punitive nature, and the inten
tion of the order was that the applicants should
be indemnified for the costs of the motion.
Dictum of Buckley, L.J., in Giles
v.
Randall (1915)
i K.B. at p. 295) considered and not applied.
(Editorial Note.
This case provides a further
illustration of the difficulty that results from using
the description " as between solicitor and client"
to import different measures of generosity on
taxation of costs (compare, for a further instance,
Re Adelphi Hotel, Ltd., (1953) 2 All E.R. 498). A
clear distinction may be drawn between taxation as
between a solicitor and his own client on the one
hand and taxation between different parties
to
litigation on the other hand. In the latter instance,
however, there are at any rate two possible variants,
vi2., (i) where a party to litigation is to receive
indemnity for his costs and (ii) where the costs
are to be borne by a fund (e.g., a trust fund) rather
than to be paid by a party. The recommendation
made by the Evershed Committee in their final
report (July, 1953 ;
Cmd. 8878, paras. 720, 721)
was that the term " solicitor and client" costs
should be replaced by " full action " costs.)
(Morgan
v.
Carmarthen Corporation—(1957)
i.
All E.R. 437.)
If a sale of registered
land
is
rescinded because
the
purchaser fails to complete, and the property is sold
to another purchaser who does not sign a contract
nor require an investigation of title, the second pur
chaser is nevertheless liable to the solicitor for the
scale fee.
THE plaintiff and
the defendant were entitled
absolutely as joint tenants to a freehold dwelling-
house which they occupied. They were registered
as proprietors with an absolute title. The plaintiff
having obtained an order of the court for the sale
of the property, the conduct of the sale was given
to S., the solicitor for mortgagees, who prepared
particulars and conditions of sale.
The property
was first sold to the defendant, but, after the pre
paration of a transfer and the obtaining of copies
of the entries on the register and the plan, she
failed to complete. The sale to the defendant was
rescinded, and the property was sold to the plaintiff.
S.
returned the defendant's deposit to her and
collected a deposit from the plaintiff.
All the
work done by S. up to this point was (quite pro
perly) charged for in detail and allowed in his bill
of costs which was later delivered.
The plaintiff
did not sign a contract, nor require an abstract of
title, and there was no deducing or investigation
of title. The transfer to the plaintiff was ultimately
executed by the defendant by order of the court.
S. included in his bill of costs £25 representing the
appropriate scale fee by virtue of the Solicitors'
Remuneration (Registered Land) Order, 1925, art.
i (D) (i) and Schedule.
The taxing master dis
allowed the item. On a summons to review taxation,
HELD by Vaisey J. that the scale fee of £25 ought
to have been allowed notwithstanding that some
of the work which the fee was stated in para. (H)
of art. i of the Order of 1925 to cover, e.g., the
preparation or perusal of a contract or conditions
of sale, had not been done for the purpose of the
sale to the defendant, since art. i (D) (i) of the
Order of 1925 contained a clear direction that the
remuneration should be the scale fee prescribed.
Per Vaisey J. :—I think that the transfer of regis
tered land stands on a very different footing to
the conveyance of land under the old regime where
there had to be abstracts and various steps taken
which are not necessary in the case of land registered
with an absolute title.
It seems to me on the par
ticular facts of this case that this scale fee of £25
ought to have been allowed, and I will so declare.
(Broughton
v.
Thorne—(1957)
i All E.R. 87).
An action against undenvriters under a " Q.C. Clause "
(subsequently defined) that a claim made in an action
against accountants
that their clerk had converted
client's money was covered by this clause was held
unsustainable.
THE plaintiffs, a firm of accountants, were insured
by the defendant underwriter " against loss for
any claim or claims which may be made against
them ... in respect of any act of neglect, default
or error on the part of the assured ... or their
partners on their servants in the conduct of their
business as accountants."
The underwriters (in
a clause called for convenience the " Q.C. clause ")
further agreed " to pay any such claim or claims
which may arise without requiring the assured to
dispute any claim, unless a King's Counsel .
.
.