The Gazette 1944-46

done nothing more than to send instructions to Counsel by whom the drafts had subsequently been prepared. The charges made in the bill, based on the usual rate per folio, for drawing the memorandum and articles of association, were substantially higher than the fee charged by Counsel for drawing the documents. On these facts, the solicitor opposing the bill objected to the allowance of any charge by the solicitor for drawing the documents, on the ground that the work charged for had not, in fact, been done by him, and submitted that the greatest amount that could be charged for drawing the documents was the fee paid to Counsel for doing that work. The Taxing master overruled the objection and allowed the solicitor's charges for drawing the documents, lg_jnclude the fee paid to Counsel, The company appealed to the High Court against the decision of the Taxing Master. In deciding the appeal Overend, J., held that although the respondent had not personally performed any oi the work claimed in the item of the bill which was the subject of the appeal, he was entitled to charge for it as if he had, in fact, personally performed it. The argument of the appellant was based on the ground that a solicitor cannot charge for any work which he has agreed to carry out and which is not performed by him personally or by office employees. His Lordship did not accept that argument as a general proposition. He held that the obligation of the solicitor in the case before him was either to prepare himself or to provide draft articles and a draft memorandum of association.- By whom the documents were, in fact, prepared, or what fee or remuneration was agreed upon between the solicitor and any third party for their preparation was immaterial to the question of the costs payable by the client to the solicitor, if the solicitor provided the draft articles and memorandum in accordance with his instruc tions and accepted responsibility for them. His Lordship, therefore, disallowed the objection against the Taxing Master's decision and allowed the solicitors' charges in the bill of costs. The decision is an important one for the profession, and it is to be hoped that it will be officially reported. It may appear at first sight to admit the principle of sub-contracting into the relations between solicitor and client, but it would be dan gerous to push its implications too far. The sub contracting, if it can be so called, involved in this case was between solicitor and counsel. It is very questionable whether a solicitor whose services had been retained for the purposes of litigation by a particular client could lawfully delegate the conduct of the proceedings to another solicitor not in his permanent employment,

without the knowledge and consent of the client. This is an important decision which is worth study by the profession. Charging Orders for Costs. THE second decided case affecting solicitors' rights, In re Blake-Clutterbuck v. Bradford (61 T.L.R. 106), dealt with the important question whether a judgment for costs only is a judgment for "property recovered or preserved" so as to entitle a solicitor to a charging order thereon for his costs under section 69 of the Solicitors' Act, 1932. This section repeats, in less ambulatory language, the provisions of section 3 of the Legal Practitioners (Ireland) Act, 1876. The substantial , effect of each section is to enable a Court before which any action has been heard to declare the solicitor, by whom the proceedings for any party have been conducted, to be entitled to a charge for his costs against the property preserved or recovered through his exertions. In Dallow v. Garrold (14 Q.B.D. 543) a judgment had been obtained for a sum of money and costs and it was held that both the debt and the costs could be made the subject of a charging order for the costs of the action on the application of the plaintiff's solicitor. In the later case of Johnston v. McKenzie (1911 2 I.R. 118) the King's Bench Division held that a judgment for costs alone was a judgment for property recovered within the meaning of the Legal Practitioners (Ireland) Act, 1876, but O'Brien, L. C. J., expressed doubt on the point, and referred in the course of his judgment to the fact that it had been conceded in argument. The recent decision of the English Court of Appeal has settled the question in favour of solicitors. The facts were that a legatee under a will, who also claimed to be a creditor of the estate, had brought certain proceedings against the executors for the recovery of the amount of his claim as a creditor. The will contained a stringent condition with regard to raising questions, binding upon the legatee. The executors took out a construction summons asking for the decision of the Court as to whether the legacy failed having regard to the condition in the will. The Court decided that the legacy had failed, having regard to the condition and the proceedings instituted by the legatee, but made an order entitling him to be paid his costs of the proceedings out of the estate. The solicitor for the legatee applied for a charge on the amount of the costs, when ascertained, on the ground that it was property recovered or preserved within section 69 of the Solicitors Act, 1932. The applica tion was refused by the High Court, but this decision was reversed by the Court of Appeal. 59