The Gazette 1908-9

[MAR., 1909

The Gazette of th.e Incprporated Law Society of Ireland.

106

he argued that it could not, in accordance , with law and practice, be -made the subject of ; certiorari. If he had convinced me that this was so, I should have allowed the appeal; but ; I should not have felt myself at liberty to express an opinion on the other important questions of law which have been discussed on both sides, and which, if the writ of certiorari were refused, must be decided in other proceedings. Having, however, come to the conclusion that, in the circumstances of the case, the writ lies for reasons which I shall state presently, I propose to consider in the first place the grounds on which I hold that the certificate is illegal. The questions in controversy will be best understood by stating what is admitted to have been the law previous to the Act of 1906. Under a series of statutes beginning in 1883, called the Labourers (Ireland) Acts, a course of procedure was prescribed to enable local authorities to purchase lands compulsorily for the purpose of providing labourers' cottages, and it was enacted that the mode of taking lands by compulsion was to be that laid down by the Land Clauses Acts as amended by the Second Schedule to the Housing of the Working Classes Act, 1890. I do not propose to examine these provisions in detail, inasmuch as I understand it is not denied by the Solicitor- General that the title costs of the vendor were taxed by one of the taxing masters of the Supreme Court pursuant to section 53 of the Land Clauses Consolidation Act, 1845, as amended by the Railways (Ireland) Act, 1851, and the Railways Act (Ireland), 1864. It is, I think, also admitted that in taxing these costs, the Master acted on a scale of fees prescribed by orders made under the Solicitors Remuneration Act, 1881. This being the state of the law when the Act of 1906 was passed, the arguments of the Respondent's counsel turned mainly on the changes introduced .thereby in relation to their costs. Some such changes are introduced by express enactment in the nth and other sections; but it is not about these provisions that the controversy has arisen. It turns upon the construction of the following words in section 31 :—" The Local Government Board, after consultation with or notice of consultation, sent to the President of the Incorporated Law Society of Ireland, may make Rules which, subject to the provisions of the Act, may fix the amount of any fees, and may provide for the taxation and payment of any costs to be received, allowed, or paid

Therefore there has been, in this certificate, and in the use made of it, an ascertainment, in effect judicial, of the rights of Lady Mowbray and Stourton and her trustees to money which they claimed. This is an assumption of juris diction, or an excess of jurisdiction, by a I public body, entrusted with limited statutory I powers, and it therefore appears to me to be a proper subject for ceiiiorari. It is plain that the certificate purported to determine rights—the amount which the claimants were entitled to receive had not been checked, nor was their claim reduced by any lawful "taxation"; and for these reasons the certificate is invalid, and must be quashed. Indeed, the Solicitor-General did not attempt to uphold it. As regards the exercise by the Board of the jurisdiction to make "general rules," I wish to repeat the warning which I gave in a former case as to the impossibility of our defining beforehand what is or may be the proper or legal scale of costs. What must be ascertained, and given, under this Act is (in my opinion) the amount of the costs which must necessarily be incurred by an owner from whom land is compulsorily taken. The Board has a wide power of simplifying procedure ; the value of the property may be taken into account; the solicitors are entitled to be remunerated only according to the amount and value of the work which they must do. But the owner must be indemnified against the necessary cost of being expropriated. I entertain no doubt that the words of section 31 cannot be narrowed either to exclude any fees or costs from the power of the Board by general rules to fix their amount, and to provide for their taxation and payment. The Board may either utilize the existing tribunal for taxation, or may by general rule provide a special tribunal for the purpose. The pro vision for taxation may be made consistent with economy as well as with expedition. But natural justice should prevent the Board from providing that the party chiefly concerned should not be heard by the taxing authority. HOLMES, LJ.:— This is an appeal from an Order directing the issue of a writ of certiorari to remove into the King's Bench Division, for the purpose of being quashed, a certificate given by the Local Government Board pursuant to Rule 55 made by the Board under the power conferred on it by section 31 of the Labourers (Ireland) Act, 1906. The Solicitor-General, in his reply, did not defend the validity of this document; but