The Gazette 1958-61

(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

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 (