The Gazette 1908-9

101

MAX., 1909]

The Gazette of the Incorporated Law Society of Ireland.

and he is once fixed with the liability to pay the bill incurred by another person, or what ever it may be, you have settled everything requiring to be settled judicially. The rest fol lows as a matter of course upon definite and fixed principles ; and it has been well described by one of the learned judges in one of the cases that were cited, as a ' ministerial' act, and not a judicial act which remains to be done. The judicial act was deciding upon the question of principle, and ascertaining whether the gentle man was liable to pay the costs at all. The case of Holdswoiih v. Wilson (2 B. & S. 480 ; 4 B. & S. i) has been cited upon this point. I am extremely glad to find that there is such an authority, and I am extremely glad to follow it, and I think it carries the case now before the House." In these cases it is true that taxation was not a condition precedent to enforcing the liability to pay; but, in my opinion, the character of the act of taxation cannot be altered merely by there being such a condition precedent. If one has an interest in the performance of a duty which is wholly ministerial, he can (in the event of non-performance, or of such defec tive performance as in law does not amount to performance) enforce performance. In The Queen v. The County Court Judge of Tyrone (10 L. R. I. 217) certiorari was held in applicable, notwithstanding taxation being a condition precedent. Therefore it seems to me that, if we yielded to the contention of the Counsel for the pro secutor as to the construction of the section, we necessarily should reverse this Order, upon the ground that it is not. examinable upon certiorari. I say this, however, not as in any sense determining this case ; but to show that whether certiorari lies or does not lie depends upon the construction of the section, which I now proceed to consider. The main questions which have been argued on this section are two—(i) Whether Rules can be made to alter the schedule of fees fixed by the second schedule to the Order under the Solicitors' Remuneration Act, 1881. (2) Whether such Rules can constitute an authority other than the Taxing Masters of the Supreme Court for taxation of the costs within the section. In my view, it will be convenient to consider the section separately in two different aspects ; viz.:— firstly, perse, without regarding as bearing upon it, the general character of the enactment in which it is found, and secondly, to consider the extent, if any, (o which the literal con­

struction, viz. :— that arrived at by the first consideration, must yield to the general pur pose and scope of the enactment. Taking the section per se, it does not appear to me to present any insuperable difficulty :— "The Local Government Board, after con- " sultation with, or notice of consultation sent "to, the President of the Incorporated Law " Society of Ireland, may make rules which, " subject as aforesaid,"—(that is, subject to certain other provisions of the Act, to which I shall hereafter call attention)—" may fix the " amount of any fees, and may provide for the "taxation and payment of any costs to be " received, allowed, or paid, in relation to the " confirmation by the Local Government Board "and the carrying into execution of improve- " ment schemes." It seems to me to be incontestable that, the expression " any fees" which are to be fixed by rules made in consultation with the President of the Incorporated Law Society, who in numerous modern Acts of Parliament has been selected as the person to protect the interests of the general body of solicitors, must include the fees of solicitors. Serjeant O'Connor ex pressly admitted that it did include them. Mr. Matheson, upon the other hand, I under stood to contest this; and it is only for that reason that I mention that, as far back as our statutes in relation to solicitors extend, it will be found that the expression " fees " has been deemed to be the apt and proper word for describing the remuneration of attorneys and solicitors. It is so used in 7th George 2 (Irish), part of the title of which is "Also for the better regulating the payment of the Fees of Attorneys and Solicitors"; in the ist and 2nd George 4, c. 17, the title of which includes the words " for better regulating the fees of attorneys and solicitors"; in the i2thand I3th Vict. c. 53, which forbids an action or suit for recovery of " any fees, charges or disburse ments for any business done by attorneys or solicitors" until the expiration of a month from the delivery of the bill; in the Rules under our Judicature Act, Order LXV, Rule 19, under which the costs and fees payable to solicitors shall be those prescribed by the Rules of this Order and Appendix S, Part I; in that Appendix, " Costs and Fees in Supreme Court proceedings," and in the Order under the Solicitors' Remuneration Act of 1881, Schedule II, "such fees for instructions," &c. The distinction between fees and costs is that the latter includes disbursements. Taking it then that the section includes solicitors' fees,