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taxation in. the proceedings; and, judged by that
test, part of the business to which the bill in the
present case related was contentious business and
»
therefore the bill was a bad bill.
Per Denning, L.J. :
" Non-contentious business
is, I believe, more remunerative than contentious
business."
Although the difference is so important to solici–
tors, there is no clear guidance to be found anywhere
to enable the profession to distinguish between
contentious business and non-contentious business.
The Solicitors Act, 1932, evades the issue.
The
section does not say what " contentious business "
means or what " non-contentious business " means.
If a clear line is to be drawn there is only one possible
place for it, viz., the issue of the writ or other
originating process in the courts of law. All busi–
ness before that date could be said to be non-
contentious, and all business afterwards
to be
contentious.
It would be very convenient if we
could draw that line, but I do not think we are at
liberty to do so for the simple reason that it is not
.
the line drawn by Parliament. The statutory dis–
tinction depends on the nature of the business
contentious or non-contentious not on the time
at which it is done.
Now suppose that, after the solicitor had instructed
Counsel to draft the writ, but before the writ was
actually issued, the case was settled by the defendant
paying the claim. Does the work take on a different
.
character simply because the case was settled ?
Surely not. If it is contentious business if the case
goes for trial it is also contentious business if the
case is settled before the writ is issued. The issue
of the writ does not alter the nature of the business ;
nor should it alter the method or amount of the
solicitor's charges. He should get the same reward
for the same work, no matter whether the case goes
for trial or is settled the moment before writ issued
or the moment after it.
These
illustrations persuade me
that, where
the work done before writ is such that, if the case
went to trial, it would properly be allowed as
against the other party on a party and party taxation,
then it is contentious business, even though a writ
is not in fact issued ; but, if the work would not
be allowed on a party and party taxation, it is not
contentious business.
I am aware that this test
sounds vague and indefinite, but the managing
clerks in solicitors' offices have a very good idea
of what business will or will not be allowed on
taxation, and I feel sure that they will be able to
apply this test and say without difficulty what is
contentious business and what is not. All work
done in the cause itself after writ is, or course,
contentious.
Counsel for the solicitors said that, when no
writ or other process was issued, there was no
scale by which to charge for contentious business,
and he pointed out that it might happen that a case
was settled before it was decided whether it should
be taken in the High Court or the county court.
This is no doubt true, but I do not think it should
give rise to any difficulty in practice. The taxing
masters will act on analogy to R.S.C., Appendix N.
They will tax the bill on the same footing as if a
writ had been issued. In case of doubt whether it
would have been a High Court or county court
action, they will, I expect, give the solicitor the
benefit of the doubt and allow him to charge on
a High Court Scale.
Applying the principles which I have stated, I
have no doubt that a good deal of the business
contained in this bill was contentious business.
The solicitors should have delivered a separate
bill of costs for all this contentious business, with
detailed items and charges. Another bill should
have been delivered for the non-contentious busi–
ness, and that could have been for a lump sum.
The bill which was in fact delivered was a bad
bill, because it did not distinguish between the
two and treated it all as non-contentious business,
which was wrong.
I now proceed to consider the second point,
which is this :
Assuming that the work was all
non-contentious, was the bill a good bill ? Until
the year 1920 a solicitor's bill, even for non-con–
tentious work, had to be drawn in the traditional
way, item by item, with a separate charge against
each item. By the Order of 1920, as re-enacted by
the Order of 1934, a solicitor was authorised to
charge a gross sum for non-contentious business,
in lieu of detailed charges, but it was provided
that the client could insist within six months on a
detailed bill of charges, just as if no gross sum were
permissible.
In 1953 a new order, the Solicitors'
Remuneration Order, 1953, was made, which made
great alterations in the method of charging for
non-contentious business.
The solicitor is now
entitled, under Sch. 2 ot the Solicitors' Remuner–
ation Order, 1883, as substituted by the Order
of 1953, to such sum as may be fair and reasonable,
having regard to all the circumstances of the case . .
.
This, I think, means a lump sum as before, but,
whereas previously
the client could afterwards
insist on a detailed bill of charges, he now has no
right to have the lump sum split up into items. He
is, however, given a valuable new right. He can
require the solicitor to put the bill before the Law
Society, so that the Law Society can see whether
the sum charged is fair and reasonable. If it is fair
and
reasonable,
they will certify accordingly;