The Gazette 1908-9

DEC., 1908]

The Gazette of the Incorporated Law Society of Ireland.

Such was the position of the owner when the Act of 1906 was passed. He had a statu tory right of indemnity expressed in the amplest terms, against costs incurred by him in making title to the lands compulsorily taken, and he had a statutory right to have these costs taxed by the taxing officer of the Court, on the scale laid down by the rule-making authority, sub ject, in certain cases, to an appeal to the Court. The amount of these conveyancing costs are not within the control of the owner or of his solicitor. They are mainly determined by the degree of particularity with which the solicitor for the promoters of the undertaking requires the owner's title to be deduced and vouched. The costs properly and necessarily incurred in proving the title to land bear no proportion to the extent and value of the estate. Indeed, if I was called on to establish a proportion, I would suggest the inverse ratio of their respec tive amounts, for large estates are commonly dealt with by carefully-drawn instruments. The rights of the owner as regards costs as well as purchase-money being clear and un disputed, and such as could only be abrogated or abridged by clearly expressed legislation, I proceed to consider the 3ist section of the Act of 1908, in view of the state of the law when it was passed. It enacts that the Board may, by rules, provide for the taxation of the costs with which it is conversant. Taxation by whom ? According to the Solicitor-Genera] by the nominee of the Board, who may be their solicitor, or any person to whom they may think fit to entrust the work. According to Mr. Ronan by the Board itself. The latter view is not taken by the Board, for by the 55th Order, purporting to be made under the statute, it is provided that where costs are payable by a council to an owner or lessee of land in respect of giving proof of title, these costs (except in certain cases) shall " be referred to the Board, who shall arrange for the taxation of the same." In the present case what is called the "taxa tion" was done by the Board itself, who "arranged for it" by asking their solicitor to inform them what items in the owner's bill of costs might reasonably be struck off. The bill j was never referred to Mr. Mecredy. If it had ! been so referred, I do not suppose for a moment that this gentleman would have entered on the mockery of a proceeding so illusory and unjust as a so-called " taxation " in the absence of the solicitor who had prepared the bill, and who would alone be in

a position to explain a questioned item, and whose duty it would have been to safeguard the interests of the owner. There has, of course, been no taxation of the bill in any real sense of the term, and if there had been nothing more in the case, I think that the order of the Board should be set aside. I am, however, clearly of opinion that the 3ist section has no operation to deprive the owner of the statutory rights which 1 have stated, by substituting for the taxing officer of the Court either the nominee of the-Board, or the Board itself, over neither of whom this Court could exercise'any control. The words "arrange for taxation," in my opinion, mean arrange for taxation by the statutory taxing authority. This interpretation is in accordance with the natural meaning of the words taken by them selves. I decline to put upon the section a con struction which it does not necessarily bear, when the result would be the abrogation of clearly defined statutory rights by legislation so obscure that the eminent counsel for the Board are unable to agree as to its meaning. I express no opinion upon an important matter to which my brother Gibson has referred, that is, whether the Board have power to deal in any way with the conveyancing costs of an owner under the terms of section 31, which relate to costs " to be received, allowed or paid in relation to the confirmation by the Local Government Board, and the carrying into execution of improvement schemes." KENNY, J.:— At the date of the passing of the Labourers Act, 1906, the costs incurred by an owner of land in deducing title to a plot compulsorily taken for the purposes of the then existing Labourers Acts, were taxable by one of the taxing officers of the Supreme Court, and the broad proposition is now put forward on behalf of the Local Government Board that the effect • of the 3ist section of the Act of 1906 and Rule 55 is to substitute for that tribunal one that is absolute and unappealable—that is bound by no scale of fees and charges, and that can set up for itself a mode of procedure in my opinion inherently unfair and unjust. If that contention be correct, the facts of the present case show that the landowner whose position has been by section n (10) of the Act differentiated from that of other owners whose lands are compulsorily acquired under other Acts of Parliament, may be sub jected to still further loss in having to bear the burden of a large proportion of the