314 / 324
settlement of Mrs. Kitchen's claim. When the
company sent £100 to the R.A.F. Association to be
used for Mrs. Kitchen's benefit
(less
the
five
guineas deducted for the solicitors) there was careful
non-disclosure to Mrs. Kitchen of the source of the
money. If the appellants were acting as solicitors for
Mrs. Kitchen then what was the effect of the con
cealment of this payment?
They clearly should
have informed Mrs. Kitchen. The necessary con
sequence was the concealment from Mrs. Kitchen
also of the real effect of their having thrown away
any case that she might have possessed under the
Fatal Accidents Act in the previous May.
Did that concealment amount to fraud? There
was here no finding and no justification of any
finding of dishonesty as that word was ordinarily
understood, but it was now clear that the word
" fraud " in the section was not limited to the same
significance as " deceit", and it was equally clear
that no degree of moral turpitude was a necessary
ingredient to the fraud. In this case, assuming that
Mrs. Kitchen was their client, she was entitled to
rely upon them to look after her interests, and it was
in breach of that confidence that they did what they
did
in October and November. His Lordship
had come to the conclusion that there was just
enough established by Mrs. Kitchen to enable her
to say that there was concealment by fraud..which.
deprived the solicitors of the right to set up the
defence of the Statute of Limitations.
(Kitchen v.
Donald Darlington and Nice—" The Times ", znd
April, 1958).
Counsels' fees disallowed in taxation. Appeal on matter
ofprinciple.
.
Oh 23rd April, 1956, trustees of a will took out
an originating summons to obtain directions en
abling them to widen the range of investments of
the trust moneys. The Attorney-General, representing
the charity beneficially interested under the will,
was the only respondent. The matter came before
Roxburgh J., in chambers on 4th June, 1956, and
after an hour's hearing the judge stood the summons
over.
On 29th October, 1956, the matter came
before Vaisey, J., and took some twelve minutes.
Counsel's opinion was obtained in November, 1956.
On i3thMay, 1957, the matter was heard in chambers
before Wynn Parry, J., and an order was obtained
in which a direction for taxation of the trustees'
costs was given in the form of the Practice Direction
dated zyth October, 1953 ( (1953) i W.L.R. 1365).
On taxation the fee which the trustees had paid to
counsel in respect of the hearing before Roxburgh,
J., of £16 55. was taxed down to £11 ;
the fee of
£i i paid to counsel on the hearing before Vaisey, J.,
was taxed taxed down to £5 los.; that paid for the
opinion of counsel was taxed from £11 to £5 ios.,
and the fee paid on the final hearing before Wynn
Parry, J. (which was to different counsel as the other
counsel had taken silk more than a year before), of
£16 55. was taxed down to £5 ios. Objections were
taken on behalf of the trustees that, having regard to
s. 30 (2) of the Trustee Act, 1925, and the Practice
Direction, the master should have allowed the
trustees all expenses properly incurred in relation
to the proceedings and no item should have been,
disallowed.
In his reply the master stated that it
would be wrong to allow higher fees than those he
had allowed to be paid out on the trust fund, that
those allowed were fair and reasonable in the
circumstances, and that those charged were excessive
and should only be paid under R.S.C., Ord. 65, r. 27
(29), if at all, by the trustees personally and not out
of the trust fund. The trustees now sought an order
that their objections be allowed.
Danckwerts, J., said that the trustees had rightly
contended that the distinction between a trustee
and a person instructing his own counsel and
solicitor was that the latter might pay whatever he
liked; but in the case of a trustee, he must use his
judgment to try and save the estate money which
should not be unnceessarily paid out. It was quite
wrong ±o.
_lo.okat the event afterwards and, counsel's
fees having been incurred and having been demanded
by counsel's clerk on the basis that that fee was asked
for having regard to the complexity of the matter
and the standing of counsel in question, to say that
counsel has been paid too much. It would undo the
whole effect which was intended by the Practice
Direction if the master were entitled to tax fees to
counsel, or other expenses that had been paid in
good faith by the trustees, on the basis that they were
payable by them. The trustees could not get out of
paying them merely because the master thought that
counsel might have been paid a somewhat smaller
sum. It was a wrong adoption of the standard laid
down by Ord. 65, r. 27 (29), which did not really
apply in this case;
it was not a case of undue
generosity—the standard was whether it was proper
or improper.
In those circumstances, therefore, it
was plain that the taxing master went wrong in
principle, and that his order must be set aside, and
the items actually paid by the trustees in good faith
must be allowed.
Objections allowed.
(In re
Grimthorpe, deceased—The Solicitors'
Journal,
March 2 9th, 1958) and ([1958] I.W.L.R. 381.).
EXAMINATIONS—CHANGE OF DATE
THE date of the ist and 2nd Irish Examinations has
been changed to the 4th day of July, 1958. Last day
107