The Gazette 1952-1955

Irish nationals. The same position arises where property is purchased by trustees to be held on the trusts o f a settlement which includes dispositions in favour o f unborn remaindermen. It is not possible to say with certainty that the children, when born, will be Irish citizens and in the absence o f the certificate, the conveyance will attract stamp duty at 25%. A deputation was appointed to interview the Revenue Commissioners. Disbursements for hand searches. T he Council considered a report from a Committee on a query from a member as to whether the outlay on hand searches is chargeable separately as a dis­ bursement or whether it is included in the scale fee. It had been suggested that the work of making searches is included in the scale fee and that if a solicitor chooses to employ a special searcher instead o f using a member o f his staff, the extra expense should not be borne by the client. Paragraph 4 of S.R.G.O. 1884, states that the remuneration pre­ scribed by the Schedule 1 is exclusive o f stamps, counsels’ fees, auctioneers’ or valuers’ charges, travelling or hotel expenses, fees paid on searches to public officers etc., and it was suggested that the latter term is limited to searches by the Registry o f Deeds staff. In their report, which was adopted by the Council, the Committee stated without expressing any opinion on the legal aspect o f the matter that the practice o f the profession is to charge fees paid to unofficial searchers as disbursements in addition to the scale fee. Joint Committee with the Bar Council. M essrs . Desmond J. Collins, James J. O’Connor and George G. Overend were reappointed as the Society’s representatives on the Joint Committee. DECISIONS OF PROFESSIONAL INTEREST. In a mortgage suit, can a hank, after judgment, claim to be indemnified against the whole o f its costs, charges and expenses as mortgagee, and contend that at least some o f the items should be taxed on an indemnity basis as between solicitor and own client, or at any rate, as between solicitor and client ? No, said Vaisey J. (1) In general, a mortagee’s costs of action to enforce his security should be taxed as between party and party. (2) In general, costs, charges and expenses o f a mortgagee, other than costs of action, should also be taxed as between party and party. (3) The mortgage deed in this suit did not by its terms entitle the mortgagee to more than party and party costs. Per Vaisey J. :— The expression “ party and party costs ” is, perhaps,

not a very happy one; I think they mean whe analysed that the computation has to be made as in a case in which there are two or more parties between or among whom the expenditure has to be apportioned. The costs chargeable under a taxation as between party and party are all that are necessary to enable the adverse party to conduct the litigation and no more. Any charges merely for conducting litigation or transacting business more conveniently, may be called luxuries, and must be paid by the party incurring them. The expression “ Costs ” means “ party and party costs ” and not “ solicitor and client costs.” The statement in Butterworth’s Costs (p. 70) that a mortgagee under the terms o f his security is usually entitled to his charges and expenses as between solicitor and client is inaccurate. Another question to be considered is whether, as between the parties in this case, the mortgagee’s rights are enlarged by certain words contained in the mortgage deed and debenture entitling the plaintiff bank to “ all costs charges and expenses incurred or paid by it in relation to the negotiation for and preparation, completion, realisation and enforcement o f the security.” These are certainly wide and comprehensive words, and it is argued that they amount either to a complete, unlimited and unqualified indemnity or at any rate to such a measure o f indemnity as would be ascertained on a taxation as between solicitor and client. I cannot so construe the words. I read the words as indicative o f nothing more than an assertion or reminder of the plaintiff bank’ s ordinary right upon realising or ehforcing its security to recover its costs, charges and expenses, as well as the principal money and interest. I decide this on the ground that as every taxation in which more than one party (in addition to the solicitor) is interested is prima facie, a taxation as between party and party, any other basis of taxation is ohly justified when the party asking for it can show that he is entitled to it, either upon some well recognised principle, or under some contract plainly and unambiguously expressed. (Re Adelphi Hotel, Brighton, Ltd.—District Bank Ltd. v. Adelphi Hotel Ltd. (1953) 1. W.L.R. 955). Is a solicitor professionally negligent when consulted by a client in connection with contemplated proceedings under the Workmen's Compensation Acts byfailing to advise him o f his right to damages at common law ? No. Lord Justice Somervell, in a reserved judgment, said that it had been submitted on the part o f the appellant that the reference to the breaking of a lift rope in course o f construction should have put the solicitor on inquiry. He (his Lordship) found the question o f negligence a difficult one. The solicitor, being wise after the event, might well