14 / 266
In answer to a preliminary enquiry before contract as
to whether the property had suffered damage, the vendor's
solicitor, in good faith, replied, “ I understand not,”
and after contract replied to a requisition as to whether
the replies to the preliminary enquiries would still be
the same, “ Confirmed.” The property had, infact,
sustained considerable damage. Can damages be recovered
by the purchaser ?
No. The English Court o f Appeal held that the
answer to the preliminary enquiry did not constitute
a warranty (Mahon
v.
Ainscough, 1952. 1 All E. R.
337
)-
A n accused convicted o f a criminal offence successfully
appealed against conviction on legal grounds. The Court
o f Criminal Appeal quashed the conviction and sentence
and ordered that the costs o f the application when taxed
and ascertained should bepaid by the State. On what basis
should the costs be taxed
?
The Taxing Master disallowed certain items in
the bill and an application was made to the High
Court for a review o f the taxation o f the costs.
The Taxing Master in his report pointed out that
there are no rules, regulations, or schedules o f fees
dealing with costs in criminal matters and referred
to the judgement o f the President o f the High Court
in the People
v.
Daly (1951 1 I.R . 1x3) in which
the President said that on the taxation o f the costs
o f a person to whom legal aid has been assigned
the costs ought to be measured rather more strictly
than they would be in an ordinary bill where the
costs are not being paid out o f public funds. Kings-
mill Moore, J., in the present case, held that a
distinction must be drawn between cases in which
legal aid has been assigned, and cases in which there
has been no assignment but the State has been
ordered to pay the costs under Section 5 (1) (
b
)
o f the Courts o f Justice Act, 1928. The dictum
o f the President in Daly’s case did not apply to a
case where there has been no assignment and where
the prisoner is paying his own costs with a right
o f indemnity against the State under an order of
the Court. He referred the matter back to the
Taxing Master, pointing out that he is not bound
by the directions o f the President in Daly’s case,
but is entitled to use his discretion in the matter,
bearing in mind the seriousness, length and diffi
culty o f and the issues involved in the case, and to
award such costs as the Master should think fair
and reasonable, bearing in mind that the State is
entitled to expect not less favourable treatment as
to costs than would be given to any other party
in legal proceedings. (The People
v.
Moscow,
1951 x.R. 169).
Where a successful party in litigation is awarded costs
against his opponent to be taxed as between solicitor and
client, as in the case where the costs are to be paid out of
a commonfund in which the client and others are interested,
upon what principles should the Taxing Master use his
discretion ?
In Giles
v.
Randall (1915 i- K . B. 290) Buckley,
L .J. said, “ There are three modes o f taxation as
between solicitor and client when the costs are to
be paid by the unsuccessful to the successful party
in an action. The first is the method applicable
where a client is taxing his own solicitor’s bill o f *
costs, usually called taxation as between solicitor
and own client. The second is where the costs are
to be paid out o f a common fund in which the
client and others are interested. The third is where
the costs are payable by one party to another, or out
o f a fund in which the party entitled to the costs
has no interest. A practice has grown up, which
I must say I regret, o f differentiating between
taxation o f costs as between solicitor and client and as
between solicitor and own client. In the former
case the taxation is substantially a party and party
taxation on a more generous scale.” In the recent
case o f Reed
v.
Gray (1952, 1 All E.R. 242) it was
held that the statement in Giles
v.
Randall that
“ a solicitor and client taxation is substantially
a party and party taxation on a more generous
basis ” was merely an
obiter dictum
and was not
binding. In Reed
v.
Gray the defendant was ordered
to pay to the plaintiff his costs as between solicitor
and client, to be taxed as in the case where the
costs are payable by one party to another out o f a
fund in which the party entitled to the costs has
no interest. In Gibbs
v.
Gibbs the costs were
ordered to be taxed as between solicitor and client,
as in the case where the costs are payable out o f a
fund in which the parties have a common interest.
It was held that the test to be applied by the Taxing
Master in Giles
v.
Randall and in the present case
was the same, merely, R.S.C. (England), Order 65,
Rule 65 (28), (See corresponding Irish Order
R.S.C. (Ireland) 1905, Order 65, "Rule 27 (29))
which disallow costs incurred through over
caution, negligence, or mistake. While the in
demnity against an unsuccessful opponent given
by an order for taxation as between solicitor and
client is not as wide as an indemnity under an
order for taxation as between solicitor and own
client, it nevertheless enables the Taxing Master
to increase the fees which would be allowed as
between party and party and to allow fees which
would be disallowed as between party and party
subject to the limitation o f R.S.C. (Ir.) Order 65
rule 27 (28). (Gibbs
v.
Gibbs 1952. 1. T.L.R . 1143).
12