The Gazette 1908-9

107

The Gazette of the Incorporated Law Society of Ireland.

MAR., 1909]

by the statute complete authority to ascertain for itself, irrespective of any prescribed scale of fees or independent taxation, the amount to be paid. If this be so, the view was erroneous ; until a new scale of fees is prescribed by Rule, the former scale is operative ; and until a new taxing authority is appointed, the existing mode of taxation continues. Therefore, when Sir George Roche sent Lady Mowbray and Stourton's costs to the Board, they ought to have been dealt with by a taxing-master as before the Act of 1906. The portion of sect- 31 that enacts that the Board may by Rule provide for their payment justifies so much of Rule 55 as says that " the sum which, after taxation, the Board may certify shall be the sum payable." This is both new and valid, and imposes on the Board the duty of seeing that there has been a legal taxation, and of giving its certificate for the amount so ascertained. The certificate furnished in this case to the Local Authority is perfectly correct in form, reciting in effect that there has been a taxation, and certifying the result. The objection to it is that there had been no taxation. The Board sent the bill of costs to its own solicitor, asking him to offer his recommendations, and in doing so to have regard to a scale of fees that had never been prescribed by rule or otherwise. He reported as to the several items to his em ployers ; and the sum certified, though based on this report, varied slightly from it in amount, and was less by almost a half than what the owner was entitled to. All this was done behind the backs of the persons interested, who had no notice of the proceedings. In these circumstances there can be no doubt that the certificate is bad in law ; and I have now to consider whether the owner has any, and, if so, what, remedy. The Solicitor-General has argued that it cannot be quashed by means of a writ of certiorari ; as that proceeding is only applicable where the document impeached is judicial and not ministerial. The line of separation which these words imply is very shadowy and difficult to fix by definition; there is, however, one test which I apply in the present case. The certificate under the rule, which in this respect is -infra -vires, is a necessary condition to give a right and im pose a liability to the payment of the costs. Without it the owner cannot sue, and the council cannot pay. In this respect it re sembles the judgment of a court of justice, and ought to be regarded as judicial in its character. This is the distinction between the present case and The Queen (Pnverscourf)

in relation to the confirmation by the Local Government Board and the carrying into execution of improvement schemes." Ser- jeant O'Connor has admitted that these Rules may prescribe a scale of costs connected with the making of title and the conveyancing of the lands compulsorily taken, subject to the limitation that such scale must be confined to the costs of the Local Authority, and does not extend to those of the owners. I can find nothing in the language or intention of the Act to justify this limitation. It may be true, as Serjeant O'Connor argued, that the policy of the Lands Clauses Acts, taken as a whole, has been to indemnify the owner of land taken from him without his consent against the ex penses to which he is put by the compulsory transfer. But this is not inconsistent with the taxation of these expenses according to a scale. Hitherto there has been such a scale, and there is nothing unreasonable in providing for a revision of the present fees. The other point argued on behalf of the respondents is that even if the provision I have read authorizes a rule prescribing the amount of fees, it does | not empower the Board to appoint a new taxing authority. This is a matter as to which I have some doubt. I am satisfied that the words " to provide for the taxation" of the costs do not enable the Board itself to assume the duty of taxation. They may, however, permit the Board to nominate independent officers to do so ; and I do not differ from the view of my colleagues on a point which seems to me to be -of small importance, as it is not likely that the Board will substitute a new tribunal for a taxing department consisting of experienced civil servants whose skill, competence, and strict impartiality are universally recognized. Having thus stated my opinion on the two principal questions argued, I have to add that the question for our decision—the validity of the certificate—is not affected thereby. The only rule made under sect. 31 relating to costs is the 55th of the Rules of the ist November, 1906, which provides that, "where costs are payable by a council to an owner or lessee of land in respect of the giving proof of title of any plot by such owner or lessee, such i costs shall be referred to the Board, who shall j arrange for the taxation of the same; and the j sum, which, after taxation, the Board may cer- j tify shall be the sum payable in respect of I such costs." Except in one respect, this rule , merely repeats portion of the section; but I am rather disposed to think that it was drawn i on the assumption that the Board was given