The Gazette 1952-1955

In answer to a preliminary enquiry before contract as to whether the property had suffered damage, the vendor's solicitor, in good faith, replied, “ I understand not,” and after contract replied to a requisition as to whether the replies to the preliminary enquiries would still be the same, “ Confirmed.” The property had, infact, sustained considerable damage. Can damages be recovered by the purchaser ? No. The English Court o f Appeal held that the answer to the preliminary enquiry did not constitute a warranty (Mahon v. Ainscough, 1952. 1 All E. R. 337 )- A n accused convicted o f a criminal offence successfully appealed against conviction on legal grounds. The Court o f Criminal Appeal quashed the conviction and sentence and ordered that the costs o f the application when taxed and ascertained should bepaid by the State. On what basis should the costs be taxed ? The Taxing Master disallowed certain items in the bill and an application was made to the High Court for a review o f the taxation o f the costs. The Taxing Master in his report pointed out that there are no rules, regulations, or schedules o f fees dealing with costs in criminal matters and referred to the judgement o f the President o f the High Court in the People v. Daly (1951 1 I.R . 1x3) in which the President said that on the taxation o f the costs o f a person to whom legal aid has been assigned the costs ought to be measured rather more strictly than they would be in an ordinary bill where the costs are not being paid out o f public funds. Kings- mill Moore, J., in the present case, held that a distinction must be drawn between cases in which legal aid has been assigned, and cases in which there has been no assignment but the State has been ordered to pay the costs under Section 5 (1) ( b ) o f the Courts o f Justice Act, 1928. The dictum o f the President in Daly’s case did not apply to a case where there has been no assignment and where the prisoner is paying his own costs with a right o f indemnity against the State under an order of the Court. He referred the matter back to the Taxing Master, pointing out that he is not bound by the directions o f the President in Daly’s case, but is entitled to use his discretion in the matter, bearing in mind the seriousness, length and diffi­ culty o f and the issues involved in the case, and to award such costs as the Master should think fair and reasonable, bearing in mind that the State is entitled to expect not less favourable treatment as to costs than would be given to any other party in legal proceedings. (The People v. Moscow, 1951 x.R. 169).

Where a successful party in litigation is awarded costs against his opponent to be taxed as between solicitor and client, as in the case where the costs are to be paid out of a commonfund in which the client and others are interested, upon what principles should the Taxing Master use his discretion ? In Giles v. Randall (1915 i- K . B. 290) Buckley, L .J. said, “ There are three modes o f taxation as between solicitor and client when the costs are to be paid by the unsuccessful to the successful party in an action. The first is the method applicable where a client is taxing his own solicitor’s bill o f * costs, usually called taxation as between solicitor and own client. The second is where the costs are to be paid out o f a common fund in which the client and others are interested. The third is where the costs are payable by one party to another, or out o f a fund in which the party entitled to the costs has no interest. A practice has grown up, which I must say I regret, o f differentiating between taxation o f costs as between solicitor and client and as between solicitor and own client. In the former case the taxation is substantially a party and party taxation on a more generous scale.” In the recent case o f Reed v. Gray (1952, 1 All E.R. 242) it was held that the statement in Giles v. Randall that “ a solicitor and client taxation is substantially a party and party taxation on a more generous basis ” was merely an obiter dictum and was not binding. In Reed v. Gray the defendant was ordered to pay to the plaintiff his costs as between solicitor and client, to be taxed as in the case where the costs are payable by one party to another out o f a fund in which the party entitled to the costs has no interest. In Gibbs v. Gibbs the costs were ordered to be taxed as between solicitor and client, as in the case where the costs are payable out o f a fund in which the parties have a common interest. It was held that the test to be applied by the Taxing Master in Giles v. Randall and in the present case was the same, merely, R.S.C. (England), Order 65, Rule 65 (28), (See corresponding Irish Order R.S.C. (Ireland) 1905, Order 65, "Rule 27 (29)) which disallow costs incurred through over caution, negligence, or mistake. While the in­ demnity against an unsuccessful opponent given by an order for taxation as between solicitor and client is not as wide as an indemnity under an order for taxation as between solicitor and own client, it nevertheless enables the Taxing Master to increase the fees which would be allowed as between party and party and to allow fees which would be disallowed as between party and party subject to the limitation o f R.S.C. (Ir.) Order 65 rule 27 (28). (Gibbs v. Gibbs 1952. 1. T.L.R . 1143). 12