245 / 266
again or, rather, what they thought was the same
thing. It was, in the words of the very experienced
managing clerk who dealt with it, a ‘ stock
requisition,’ and he answered in the ‘ stock form.’
He answered it in the way in which, Harman J ., said,
‘ such questions had been answered from the time
of the memory o f man, or at all events for a long
time. But by ill luck the Courts held that the words
which the solicitors used, instead of protecting their
clients, amounted to a repudiation o f the contract.
That was, in my view, not the solicitors’ fault. It
was not a thing which could reasonably have been
anticipated to flow from the answer to the requisition.
The solicitors acted in accordance with the general
practice o f conveyancers. No ill consequences had
ever been known to flow from an answer in this
form. Now that the case has gone adversely to the
plaintiff, we can see that it was a mistake, but it is
so easy to be wise after the event. One has to try
to put oneself in the position o f the solicitors
at the time and see whether they failed to come up
to a reasonable standard o f care and skill such as is
rightfully required o f an ordinary prudent solicitor.
It seems to me, applying that test, that it is impossible
to say that these solicitors were guilty of a breach
o f duty to their client. It was one of those misad
ventures and misfortunes which do sometimes
happen even in the best conducted businesses.’ I
think that Harman J ., was right in holding the
solicitors were not guilty of negligence in regard
to the answer to the requisition.”
{Simmons
v.
Pennington
(1955) 1,
A ll E .R .,
240).
Costs. Agreement fo r payment of lump sum
Solicitors having failed to deliver to their client
a proper bill of costs as required by sections 59, 60
(5) and (6) o f the Solicitors Act 1932, corresponding
to sections 4 and 10 o f the Attorneys and Solicitors
Act, 1870, the client issued a summons asking that
the bills, fees, charges, and disbursements o f the
solicitors be referred to a Master to be taxed. At
the hearing o f the summons the solicitors asserted
that under an agreement, the client had paid to
them a lump sum in full settlement o f their account
and therefore under section 62 of the 1932 Act,
corresponding to section 15 o f the Attorneys and
Solicitors Act, 1870, their costs were not subject
to taxation nor to the provisions of the Solicitors
Act, 1932, with respect to the signing and delivery
of a bill o f costs. The Master directed an issue
on the question whether there was an agreement as
alleged and the Judge, in chambers, re-opening the
agreement on the ground o f special circumstances
under section 60 (6) o f the 1932 Act, corresponding
to section 10 of the Attorneys and Solicitors Act,
1870, ordered the solicitors to deliver a bill of costs
for taxation.
On appeal by the solicitors, the Court of Appeal
(Sommervell, Birkett and Romer, L .J.J.), affirming
Glyn, Jones J ., held that the solicitors having
disregarded the requirement of section 60 (5) o f
the 1932 Act, corresponding to a proviso to section
4 o f the 1870 Act, by receiving payment o f the
sum due under the alleged agreement without first
submitting the agreement to the Taxing Officer for
examination and allowance by him are disabled
from claiming immunity from taxation under section
62 o f the 1932 Act and must, therefore, deliver an
itemised bill of costs for taxation.
(Re
Simmons
& P o lite r
(1954) 3,
W.L.
R ., 423.)
Costs.—Contentious or non-contentious business—Lump
sum bill.
In March, 1953, a client sought the advice o f a
firm of solicitors (“ the first solicitors ” ) with regard
to matrimonial difficulties which had caused her
to live apart from her husband who resided in South
Africa.
On their advice, inquiry agents were
employed, a petition for judicial separation was
prepared and costs were incurred in preparation for
the filing of the petition which they had advised
her to have ready if she decided to institute pro
ceedings. At the same time the first solicitors
advised the client on offers of financial provision
made to her by her husband. The client withdrew
her instructions from the first solicitors in July 1953,
before the petition had been filed and instructed a
second firm. A petition in substantially the same
form as that originally drafted was eventually filed
by the second firm in December, 1953. In September,
1953, the first solicitors delivered a lump sum bill
which contained a detailed description o f the work
that they had done. The client applied for and
obtained from a master an order for the delivery
o f an itemised bill o f costs. On appeal, the Court,
at the request o f the parties, considered the appeal
first on the footing that the lump sum bill was in
respect of non-contentious business only.
Held by Gerrard J : (i) Assuming that the whole
o f the business to which the lump sum bill related
was non-contentious business within art. 2
{c)
of the
Solicitors Remuneration Order, 1883, the lump sum
bill was a good bill and in accordance with Sch. 2
to that order as substituted by the Solicitors Remun
eration Order, 1953, notwithstanding that the latter
order had revoked the Solicitors Remuneration
6 7