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KaVe come to" any other conclusion but that it was
signed, he would have no case. Now it is not
suggested that any intimation was conveyed to
him at the time -when the certificate was taken
out and it is a curious feature of the case that no
demand was made for payment of the costs until
January, 1952..
The plaintiff himself swears that
he did not know the certificate was signed and
I do not see any reason to disbelieve him.
It seems to me in any event in all the circum
stances that the plaintiff's attitude was excusable,
and that he was genuinely taken by surprise when
the demand for costs was actually made.
Apart from the explanations put forward to
excuse the plaintiff's delay I have, however, also
to be satisfied that the plaintiff genuinely intended
to appeal and held to that intention all along.
The fact that Counsel was retained to argue the
case before the Taxing Master shows that the
Plaintiff had serious intentions in contesting the
point.
This motion was brought within a reasonable
time after the refusal of the defendants to extend
the time and the position is that if I refuse to
extend the time for a review of taxation the result
may be that the plaintiffs will have to pay to the
defendants a substantial sum in respect of a portion
of the costs in respect of which he may be shown
to have no legal liability to pay. On the other
hand if I do extend the time it will enable the
is>,ue to be determined according to law and no
real hardship will be done to the defendants in
that they will only suffer a delay. The defendants
can scarcely suggest that there is any gre?* urgency
about the matter since they allowed six months
to elapse before applying for the costs.
While it was objected before me that the proper
evidence necessary to make the correct calculations
was not adduced by the plaintiff, it was not at
any time suggested that the case before the Taxing
Master had proceeded on any other basis but that
the solicitor conducting the proceedings on behalf
of the Corporation was remunerated by way of
salary and this appears to have been accepted
as common case.
Party and party costs are of course given in
the character of an indemnity but are not a complete
indemnity.
If the costs awarded in an action are
to be taxed however on a solicitor and client basis
they obviously come closer to that position.
If
the fact that an agreement exists between the
successful litigant in an action and his solicitor
affects the amount of the party and party costs
ultimately payable by the unsuccessful party, there
does not seem to be any reason why the fact that
such costs are to be taxed on a solicitor and client
basis should lead to any different result.
I feel it right to say that I have some difficulty
in seeing why it is for the party objecting to the
allowance of the usual costs to show that the
allowance will give more than an
indemnity.
Section
5
of the Solicitors Act, 1870 provided,
as I have indicated above, that a client who has
entered into such an agreement shall not be entitled
to recover from any other person more than the
amount payable by the client to his own attorney
under the agreement. It would seem to me and
I think I need put it no further than this, that the
section is, at least, open to the interpretation that
the onus lies upon the party seeking to recover
costs, in such circumstances, to show that the
costs claimed are not more than the amount payable
by the client to his own attorney and that accordingly
it is not for the party objecting to the allowance
of the usual costs, to have to prove that the allowance
will give more than an indemnity.
It would
certainly seem more reasonable to ask the party
who has all the facts, figures and materials at his
disposal
to provide
the necessary
information
(White
v.
Dublin Corporation (1955) 89 I.L.T.R.
144).
NOTE : The above mentioned case although heard
by Mr. Justice Budd in 1952 was not reported
until 1955, and there does not appear to be any
subsequent report of the substantive point involved,
viz. :
the onus of proof where a client a successful
litigant who employs a salaried solicitor claims
full party and party costs. If this point is brought
before the courts for a decision, Section 59 of
the Solicitors Act, 1954, and regulation 7
(b)
of the
Solicitors Act, 1954, Professional Practice, Conduct
and Discipline Regulations, 1955, will be relevant.
This regulation provides that a solicitor shall
not agree to share with any person not being
either a solicitor qualified to practise or a duly
qualified legal agent in another country his profit
costs in respect of any business either contentious
or non-contentious but goes on to say that a solicitor
who is employed full time in consideration of
a salary to do the legal work exclusively of an
employer who is not a solicitor may agree with
such employer to set off profit costs received in
respect of contentious business from the opponents
of such employer the costs paid to him as the
solicitor for such employer by
third parties in
respect of non-contentious business against (i)
the salary so paid or payable to him and (2) the
reasonable office expenses incurred by such employer
in connection with such solicitor (and to the extent
of such salary and expenses).
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