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fact, that some outside interest had financed the
appeal;
there was no suggestion that it was a
maintained action. While, however, he was not in a
position to say that there had been the agreement
alleged, he submitted that there was substantial
evidence that someone other than the respondent
did in fact pay at least counsel's fees, and though
there had been a specific denial of any agreement,
that appeared in only one sentence in an affidavit,
and he wished to be given an opportunity of
examining material witnesses.
The matter, con
cluded counsel, was of some importance because
the items in question ran into some thousands of
pounds, and he asked the Board to exercise its
very wide powers under s. 8 of the Judicial Com
mittee Act 1833 and to refer the matter back for
investigation to the registrar of the court from
which the appeal came. If the petitioner was unable
to establish any agreement, added counsel, and
he acknowledged that the burden on the petitioner
was very heavy, the respondent had the safeguard
of costs.
In the result the Judicial Committee,
without calling on counsel for the respondent,
said that the motion must be refused, and, in
accordance with their almost invariable practice
in the case of petitions, they gave no reasons for
their decision.
(Reprinted by courtesy of
The Solicitor's journal,
and March, 1957, page 198).
Solicitor entitled to three-fourths of scale fee in case of
abortive auction if he has substantially performed
the work.
The applicant acted as solicitor for the respondent
in connection with an auction of the respondent's
garage premises, and also
in connection with
negotiations conducted before and after the auction
for the sale of the premises by private treaty. The
reserve price was not reached at the auction and
the property was withdrawn. After further efforts
to sell, the respondent changed his solicitor and
the new solicitor acted for the respondent when a
sale of the property was eventually effected by
private treaty. The applicant delivered three bills
of costs to the respondent, the first and third of
which dealt with, among other things, the costs
of attempts to sell the property before and after
the abortive auction.
The second bill charged
three-fourths of the scale fee on the reserve price
at the auction, in respect of the costs of the abortive
auction.
This fee was disallowed
in toto
by the
Taxing Master on taxation. The applicant appealed
by way of Notice of Motion to the High Court
against this disallowance.
HELD—That the appeal to the High Court from
the Taxing Master was properly brought by way
of Motion on Notice and that it was not necessary
to proceed by way of Originating Summons.
HELD further—That the transaction in question
came under Schedule i, Part I, Rule 2
(a)
of the
Solicitors' Remuneration General Order,
1884,
under the Solicitors' Remuneration Act, 1881, and
that the applicant was entitled to three-fourths of
the scale fee payable to vendor's solicitor under
the said Schedule.
Dixon J., delivering judgment, said that he held
that the appeal from taxation by the Taxing Master
to the High Court, which was provided for by
Order Ixv, Rule 66, of the 1905 Rules of the High
Court and Supreme Court, could be properly
brought by way of Motion on Notice and need
not be brought by was of Originating Summons.
The present appeal dealt with a very net point.
The only question was whether the particular bill
came within the provisions of Schedule i, Part i,
Rule 2
(a)
of the General Order of 1884, made in
pursuance of The Solicitors' Remuneration Act,
1881. The Taxing Master seemed from his report
to have taken the view that it did not, and could not,
by reason of the fact that the solicitor had been em
ployed in connection with attempts to sell otherwise
than by auction, both before and after the unsuccess
ful auction which was the subject-matter of this bill,
and had charged on an itemised basis in respect
of this work. That view involved reading a quali
fication or limitation into paragraph
(a)
of the Rule,
which was not there in express terms, that is to
say, that paragraph
(a)
only applied to an abortive
auction where no other work by way of attempted
sale was carried out by the solicitor. His Lordship
said that he did not see how or why such a quali
fication should be implied.
If a solicitor employed
in connection with an abortive auction was also
asked to carry out other work for the client, he
might be
in a very disadvantageous position
regarding remuneration if that qualification existed.
In addition, practical difficulties might arise if
there were a considerable lapse of time between
the auction and the other work done by the solicitor
before or after the auction.
His Lordship said he agreed with the view
expressed in Gill on Costs, 1932 Edn., p. 198,
that an abortive auction was to be regarded as a
" complete transaction" within the meaning of
the General Order of 1884, for the purposes of
taxation.
It was immaterial and irrelevant whether
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