The Gazette 1952-1955

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Members will recall the decision in

“

District

Bank Ltd.

Adelphi Hotel Ltd.” referred to in

the January 1954 Gazette, at p. 60, in which Mr.

Justice Vaisey held that in a mortgage suit, a bank,

after judgment, is only entitled to party and party

costs in respect o f the whole o f its costs, charges

and expenses as mortgagee, unless the mortgage

deed specifically states that the mortgagee is entitled

to solicitor and own client costs, even though the

terms o f the deed were very wide.

Mallins V.C. in “ Smith

Bu ller” L .R ., 19 E.

p. 473, gave his view o f “ party and party costs ”

though the expression has never been defined. He

said that “ The costs chargeable under a taxation

as between party and party are all that is necessary

to enable the adverse party to conduct the litigation

and no more. Any charges merely for conducting

litigation more conveniently may be called luxuries,

and must be paid by the party incurring them.” In

connection with a mortgagee suit, it is submitted

that the following costs incurred by the mortgagee

do not come within “ party and party costs ” :

(1) The preliminary steps being taken, prior to

action to enforce the security—such as the

interviews between the bank and its solicitors

discussing the line of action to be taken,

and possibly a conference with or an opinion

from counsel in the matter.

(2) Letters written to the mortgagors with regard

to the payment off o f the mortgage and

negotiations for time in which to pay, and

further advice to the Bank in relation thereto.

(3) After judgment has been obtained, only the

bare costs relating to the discharge o f the

mortgage would be allowed. This would not

include any advice to the Bank as to the terms

o f the discharge.

As regards the costs, charges and expenses o f the

Bank in relation to the negotiations for and prepara

tion and completion of the mortgage, these will

only be allowed on a solicitor and client basis,

either on a well-recognised principle or under some

contract plainly and unambiguously expressed. While

it is customary for the mortgagor to pay the mortga

gee’s solicitors costs o f the mortgage, this appears

to mean no more than the strict party and party

costs for the preparation, negotiation and completion

of the mortgage. Unless there is an express agreement

to give the mortgagee a complete indemnity for

his solicitor’s costs. If, therefore, it is the intention

o f the parties, whether mortgagor or mortgagee,

that the receiving party is to have a complete

indemnity for his costs, it is necessary to provide

for this plainly and unambiguously in the document,

and the best way o f doing this is to use the term

which has a well established meaning in the Courts,

and to provide that “ the costs, charges and expenses

shall be taxed or agreed and paid on a solicitor and

own client basis.” (See

Law Times,

19th June,

954

THE REGISTRY.

ualified

Assistant,

years experience, at present with

well established provincial firm, desires change : has specialised

in conveyancing, probate and general wo rk; also experience

in Circuit Court practice

;

some High Court litigation;

first class references; excellent health; types own drafts.

Box No. B187.

OBITUARY.

. C

h a r l e s

o o k e

Solicitor, died on the 5th

July, 1954, at his residence, Corrib House, Galway.

Mr. Cooke served his apprenticeship with the

late Mr. Thomas M. Kenny, Solicitor, Galway,

was admitted in Hilary Sittings, 1915, and practised

as senior partner in the firm o f Messrs. Blake &

Kenny, Galway.

REGISTRATION OF TITLE ACTS,

18 9 1 AND 1942 .

o t ic e

Folio 112 19 County Wexford.

Registered Owner: Mary Brooke Kelly.

h e

Registered Owner has applied for the issue

o f a Certificate of Title in substitution for the

Certificate specified in the Schedule hereto which,

it is alleged, has been lost or inadvertently destroyed.

A Duplicate Certificate will be issued unless a

notification is received in this Registry within 28

days from the date o f this Notice that the said

Certificate o f Title is still in existence and in the

custody o f some person other than the Registered

Owner. Any such notification should state the

grounds on which the Certificate is retained.

Dated this 28th day o f July, 1954.

o s e p h

O ’ B

y r n e

Registrar o f Titles.

Central office,

Land Registry,

Chancery Street,

Dublin.

(See schedule o f lands next page)