148 / 266
Irish nationals. The same position arises where
property is purchased by trustees to be held on
the trusts o f a settlement which includes dispositions
in favour o f unborn remaindermen. It is not possible
to say with certainty that the children, when born,
will be Irish citizens and in the absence o f the
certificate, the conveyance will attract stamp duty
at 25%. A deputation was appointed to interview the
Revenue Commissioners.
Disbursements for hand searches.
T
he
Council considered a report from a Committee
on a query from a member as to whether the outlay
on hand searches is chargeable separately as a dis
bursement or whether it is included in the scale fee.
It had been suggested that the work of making
searches is included in the scale fee and that if a
solicitor chooses to employ a special searcher instead
o f using a member o f his staff, the extra expense
should not be borne by the client. Paragraph 4 of
S.R.G.O. 1884, states that the remuneration pre
scribed by the Schedule 1 is exclusive o f stamps,
counsels’ fees, auctioneers’ or valuers’ charges,
travelling or hotel expenses, fees paid on searches
to public officers etc., and it was suggested that
the latter term is limited to searches by the Registry
o f Deeds staff. In their report, which was adopted
by the Council, the Committee stated without
expressing any opinion on the legal aspect o f the
matter that the practice o f the profession is to charge
fees paid to unofficial searchers as disbursements
in addition to the scale fee.
Joint Committee with the Bar Council.
M
essrs
.
Desmond J. Collins, James J. O’Connor
and George G. Overend were reappointed as the
Society’s representatives on the Joint Committee.
DECISIONS OF PROFESSIONAL
INTEREST.
In a mortgage suit, can a hank, after judgment, claim
to be indemnified against the whole o f its costs, charges
and expenses as mortgagee, and contend that at least some
o f the items should be taxed on an indemnity basis as
between solicitor and own client, or at any rate, as between
solicitor and client ?
No, said Vaisey J. (1) In general, a mortagee’s
costs of action to enforce his security should be
taxed as between party and party. (2) In general,
costs, charges and expenses o f a mortgagee, other
than costs of action, should also be taxed as between
party and party. (3) The mortgage deed in this
suit did not by its terms entitle the mortgagee to
more than party and party costs. Per Vaisey J. :—
The expression “ party and party costs ” is, perhaps,
not a very happy one; I think they mean whe
analysed that the computation has to be made as
in a case in which there are two or more parties
between or among whom the expenditure has to
be apportioned.
The costs chargeable under a
taxation as between party and party are all that are
necessary to enable the adverse party to conduct
the litigation and no more. Any charges merely
for conducting litigation or transacting business
more conveniently, may be called luxuries, and must
be paid by the party incurring them. The expression
“ Costs ” means “ party and party costs ” and not
“ solicitor and client costs.”
The statement in
Butterworth’s
Costs
(p. 70) that a mortgagee under
the terms o f his security is usually entitled to his
charges and expenses as between solicitor and client
is inaccurate.
Another question to be considered is whether,
as between the parties in this case, the mortgagee’s
rights are enlarged by certain words contained in
the mortgage deed and debenture entitling the
plaintiff bank to “ all costs charges and expenses
incurred or paid by it in relation to the negotiation
for and preparation, completion, realisation and
enforcement o f the security.” These are certainly
wide and comprehensive words, and it is argued
that they amount either to a complete, unlimited
and unqualified indemnity or at any rate to such
a measure o f indemnity as would be ascertained on
a taxation as between solicitor and client. I cannot
so construe the words. I read the words as indicative
o f nothing more than an assertion or reminder of
the plaintiff bank’ s ordinary right upon realising
or ehforcing its security to recover its costs, charges
and expenses, as well as the principal money and
interest. I decide this on the ground that as every
taxation in which more than one party (in addition
to the solicitor) is interested is prima facie, a taxation
as between party and party, any other basis of
taxation is ohly justified when the party asking for
it can show that he is entitled to it, either upon
some well recognised principle, or under some
contract plainly and unambiguously expressed. (Re
Adelphi Hotel, Brighton, Ltd.—District Bank Ltd.
v.
Adelphi Hotel Ltd. (1953) 1. W.L.R. 955).
Is a solicitor professionally negligent when consulted by a
client in connection with contemplated proceedings under
the Workmen's Compensation Acts byfailing to advise him
o f his right to damages at common law ?
No.
Lord Justice Somervell, in a reserved
judgment, said that it had been submitted on the
part o f the appellant that the reference to the breaking
of
a
lift rope in course o f construction should have
put the solicitor on inquiry. He (his Lordship)
found the question o f negligence a difficult one.
The solicitor, being wise after the event, might well