The Gazette 1908-9

100

The Gazette of the Incorporated Law Society of Ireland.

[MAR., 1909

acted. The section says that the Board may provide for the taxation and payment of any costs to be received, allowed, or paid. Rule 55, which for this purpose we must assume to be intra vires, provides that the owners' costs shall be referred to the Board, who shall arrange for the taxation of the same ; and the sum which, after taxation, the Board may certify shall be the sum payable. [His Lord ship read the certificate of ijth April.] It is admitted that taxation was a condition pre cedent, and they decide what is to be paid. The fact that their decision is illegal does not help, because that element exists in the case of every illegal judicial act .capable of being quashed. As a general rule certiorari lies wherever the judicial act complained of im poses liability or affects a right. I think, therefore, certiorari lies. I may observe that in the Tyrone Case the Chief Justice relies strongly on the circum stance that the Chairman did not make and could not make any order for payment of the costs ; but this is exactly what the Local Government Board does in this case. THE LORD CHIEF BARON :— Two questions have been dealt with by the judgments in the King's Bench Division, and argued by counsel here, viz.:—(i) Whether the action of the Local Government Board was within the jurisdiction conferred upon them by sect. 31 of the "Labourers (Ireland) Act, 1906"; and (2), if not, whether the Act by which they purported to exercise that jurisdic tion, whether it be called a certificate or an order, is examinable upon certiorari. Of these questions, the latter is first in logical order; but when it comes to be considered, it will be found to be inextricably mixed up with the first question—that 'of the merits. I say this because if, upon the true construction of this 3ist section, the General Rules which the Local Government Board has jurisdiction to make do not extend to fixing any scale of solicitors' fees, if those Rules cannot provide any authority other than the taxing masters of the Supreme Court to tax the costs in question, and if the Rules under that section must be restricted, so far as regards the costs of the vendor's solicitor, to limiting the periods of time within which those costs must be fur nished to local authorities, to requiring local authorities to promptly furnish requisitions to tax, so as to give the taxing masters jurisdic tion, for arranging with those taxing masters for immediate taxation, and to provide for the payment of those costs as ascertained upon

such it would, to my mind, be impossible to contend that those duties were judicial. This section does not confer any jurisdiction to determine the right to these costs, which depends on statute ; and it is absolutely settled by decisions of the highest authority, both in England and Ireland, that where the right to costs depends on statute, the ascertainment of the amount of those costs, when such ascer tainment is not to be the act of a Court, is ministerial and not judicial. In my opinion the law is accurately stated by the Lord Chief Justice in the following passage of his judgment in 77;,? King v. Goff (1905 2. I. R., at p. 128), which was a case in reference to costs of arbitration taxed by a taxing master of the Supreme Court under the Lands Clauses (Taxation of Costs) Act, 1895. '• There remains, then, the important question, Can the taxation of the taxing' master be chal lenged by certiorari? We think not. We think that in such a case the procedure by cerliorari is inapplicable, because the taxing master's function is ministerial, and his certificate does not impose a final binding liability. The costs under the Act of Parliament are referred to him to be taxed and settled. The master has no judicial discretion to determine whether the parties shall or shall not get costs at all. His function is to ascertain an amount—to measure, moderate, and settle ; and in doing this he is guided by rules of practice so far as they are applicable, or can suggest an analogy. This is not a judicial act in the sense in which the expression 'judicial act' is understood in pro ceedings by certiorari." The same principle is laid down by Lord Hatherley in Metropolitan District Ry. Co. v. Sharps (5 A. C., at p. 439), in which the question also arose as to costs of an arbitra tion. He says :—" The principle of taxing- costs is well understood, and I do not think that the circumstance that if a reference is made to the taxing master, and he is persona designata, I do not think that can make any substantial difference in the case. He must proceed on definite and fixed rules, not as investigating the facts with a dubious result in law attached to those facts, but simply as taxing the bill in the ordinary way in which he acts when any gentleman who wishes to dispute a bill brought against him by his own solicitor, has a right to have it taxed. If it is decided that that gentleman is bound to pay the soli citor's bill of another person for some litigation which he has entered into, when that issetiled, taxation,