The Gazette 1908-9

The Gazette of the Incorporated Law Society of Ireland.

[DEC., 1908

68

amending Act of 1864. (27 & 28 Vict., c. 71) simplified procedure by making conveyancing costs taxable by a taxing master of the' Court of Chancery on the requisition of the Com pany, but did not in any way affect the rights of the owner. The costs of obtaining an order for an im provement scheme, and carrying it into effect, occupy a different position from the convey ancing costs of the owner. An argument has been addressed to us, founded on the i2th | section of the Labourers Act of 1885, and on | the General Order of 1887, made under its provisions, but they have no relevance to the question before us. This statute and order I relate to a distinct class of costs. Under the j first Labourers Act—that of 1883—opposition i to a Bill confirming a provisional order was by petition to Parliament, and the Committee to which the petition was referred had power to award costs to the promoters or .to the opponents of the Bill. Costs so awarded are taxable under 28 & 29 Vict., c 27, by the Parliamentary taxing officer. By the i2th sec tion of the Labourers Act of 1885, the juris diction of Parliament in relation to provisional orders under these Acts was transferred to the Privy Council. Sub-section 6 provided that the costs of the parties should be in the dis cretion of the Lord Lieutenant in Council, who was empowered to make general rules for carrying the Act into effect, including " fixing the amount of any fees, and the taxation and payment of any costs to be taken, allowed, and paid in relation to the confirmation of provisional orders." It was necessary to make special provision by General Order for the taxation of these costs, as was done by the Order of 1887, inasmuch as no statutory provision existed for their taxation by the taxing officer of the Court. The conveyancing costs of an owner must also be distinguished from another class of costs, the taxation of which is now regulated by 58 Vict., c. ii (1895), the application of which is limited to " costs of and incidental to the inquiry or to the arbitration and award " when compensation is assessed under the Lands Clauses Acts, or any amending Act by a jury or by arbitration. Taxation under this section differs from that applicable to owners' conveyancing costs as regards both subject- matter and the position of the taxing officer, who acts, not as the officer of the Court, but as persona designala, to whom the Legislature had transferred the duty of taxation.

perse, created no liabilityto pay. I observe that my brother Gibson pointed out that different considerations might apply to a taxation under section 52 of the Lands Clauses Act of 1845, a case which bears considerable resemblance to that before us. In my opinion an order by the Local Government Board providing for the pay ment of costs contains the element which was wanting in Gaff's Case, and is the proper subject-matter of certiorari. The costs with which this order is conversant are the costs of an owner of land compulsorily acquired under the Labourers Acts, and are those incurred in making title to the land, and in complying with the requirements of the local body by " which it was acquired. The rights which are at issue are those of the owner of land com? pulsorily acquired, and not those of his or her solicitor, whose right to his costs as between solicitor and client cannot be affected by the action of the Local Government Board. I need not examine in detail the various statutes which have been enacted during the last half century or so for the purpose of enabling land to be compulsorily acquired for purposes of public utility. The tendency has been especially in later years to extend widely, in different directions, the classes of purposes to which this legislation has been applied. But the entire system of legislation has been based upon the principle of indemnity to the indi vidual landowner, both as regards compensa tion for the land compulsorily acquired, and the costs incurred in making title to the body by which it is acquired. The procedure under the Irish Statute engrafted in the Lands Clauses Act (the Railways (Ireland) Act, 1851) was in tended to secure to the landowner the full value of the land taken, to which indeed arbitrators were, at one time, in the habit of adding 10 per cent, in consideration of compulsory sale. The statutes were "equally clear as regards his right to indemnity in the matter of costs, com mencing with section 82 of the principal Act (8 & 9 Vict., c. 18). By this section the con veyancing costs of the owner are to be paid by the promoters of the undertaking. The widest possible interpretation is adopted in this sec tion, so as to secure a complete indemnity for the owner, and the 83rd section for the taxa tion of those costs, when the parties do not agree, by the taxing masters of the Court, at the expense of the promoters of the under taking. This section, which' was incorporated in the Railways (Ireland) Act of 1 85 i, regulated the taxation of conveyancing costs in proceed ings under that Act. The I2th section of the