100 / 338
court, instructed solicitors to obtain counsel's opin
ion
(a)
whether any officer of the company had com
mitted a breach of trust on which misfeasance could
be founded, and (&) as to the recoverability of the
balance of certain deposits paid by the company to a
third party. No proceedings were taken in either
case. On Nov. 21, 1957, the solicitors delivered a
lump sum bill, which was taxed, as non-contentious
business, under Sch.
z to
the Solicitors Remuneration
Order, 1883 (as amended), in accordance with art. 2
(f)
of the Order. The liquidator lodged objections
to the basis of the taxation on the ground that the
costs were in respect of business in an "action," i.e.,
the winding-up proceedings and, therefore, were ex
cluded from art. 2 of the Order of 1883 by the words
"not being business in any action" therein, and
should be taxed under R.S.C., Appendix N, in ac
cordance with R.S.C., Ord. 65, r. 8. The objections
were disallowed. By s. 86 (i) of the Solicitors Act,
1957, "contentious business" was defined as "busi
ness done ... in or for the purposes of proceedings
begun before a court. . ." and "non-contentious"
was defined as "any business done as a solicitor
which is not contentious business as defined by this
sub-section". On a summons by the liquidator for
the taxation to be reviewed, the further question
arose whether the costs were in respect of contentious
business within the definition in s. 86 (i) and thus
were excluded from the scope of the Order of 1883
and were taxable under Appendix N to the R.S.C.
Held by Wynn Parry J. that (i) the business was
not contentious business within s. 86 (i) of the Soli
citors Act, 1957, and accordingly was rightly taxed
as non-contentious business under art. 2
(c)
of and
Sch. 2 to the Solicitors' Remuneration Order, 1883,
for the following reasons—
(a)
The scope of the Order of 1883 was now re
stricted by excluding such conveyancing and other
business as was within the definition of contentious
business in s. 86 (i), which definition extended to,
e.g., conveyancing business in an action,
(&) Advising a liquidator in a compulsory winding-
up whether an action should be begun by writ was
not contentious business unless the action were be
gun, because the proceedings to which the advice
was referable were the action, not the winding-up,
and
(<r) So, also, advising a liquidator in a compulsory
winding-up whether a misfeasance summons should
be issued was not contentious business unless the
summons were issued, notwithstanding that the sum
mons would be entitled in the winding-up and would
thus be a proceeding in the winding-up (which itself
was a proceeding before the court) within the def
inition of contentious business in s. 86 (i).
(ii) A petition for compulsory winding-up was not
an "action" within s. 225 of the Supreme Court of
Judicature (Consolidation) Act, 1925, since the form
of proceedings for compulsory winding-up was pro
vided by the Companies Act, 1948, s. 224, not by
rules of court.
Per Curiam :
all business is now to be regarded as
contentious which is done before proceedings are
begun, provided that the business is done with a view
to the proceedings being begun and that they are in
fact begun, and also all business done in the course
of the proceedings ;
all other business is non-con
tentious.
Note:
Power is conferred by s. 56 (2) of the
Solicitors Act, 1957, to make orders regulating soli
citors' remuneration in non-contentious business,
which term is defined in s. 86 (i) as business which
is not contentious business as there defined. The
Solicitors' Remuneration Order, 1883, as amended,
is continued in force by s. 88 (2) for the purposes of
s. 56 (2). The definition of contentious business now
contained in the Act of 1957, was altered to its pres
ent form by the Solicitors (Amendment) Act, 1956,
5.13 (4)
(a).
The decision in the present case proceeds
on the basis that this alteration affects the scope of
the Order of 1883 as continued in force, and indeed
restricts it by excluding conveyancing business done
in an action, since such business is now within the
definition of contentious business.
In this respect,
viz., the alteration of the scope of the existing Order
of 1883, the decision may be compared with
Re A.
Solicitor
((1955) i All E.R. 257), which was, however,
prior to the amendment of the definition of conten
tious business by the Act of 1956.
Per Wynn-Parry, J. :
In the ordinary course, busi
ness consisting of advising whether or not proceed
ings should be started is non-contentious business,
and only becomes contentious business if proceedings
are, in fact, started :
hence the necessity in defining
contentious business to include not only the preposi
tion "in" but also the words "for the purposes of".
It will thus be seen that, in the ordinary case, the test
whether the business of advising on the question of
bringing proceedings is to be regarded as contentious
business depends on the course taken subsequently
to the advice being given. It must follow from the
argument of the applicant that, supposing the busi
ness done is advising whether or not a writ of sum
mons should be issued, the nature of that business is
not to be tested by posing the question :
Were the
proceedings in fact begun as a result of the advice ?
The question is answered, indeed, as soon as the
business of advising it undertaken, because it is done
"in" existing proceedings. The matter does not rest
there. Carried to its logical conclusion the argument
of the applicant must cover every type of business