The Gazette 1908-9

The Gazette of the Incorporated Law Society of Ireland.

[DEC., 1908

66

appear to me to extend to vendor's con veyancing or title costs,"nor does the section contemplate such costs. The existing function of the taxing master in relation to such costs was not superseded by section 12. Section 31 of the new Act is much wider than section 12 : it brings in the head of the solicitor profession, and adds in relation to costs the words, "the carrying into execution of improvement schemes." What " fees " may include does not require decision. The section, compared with section 12 of the. Act of 1885, raises two points. The first is, does it extend to conveyancing or title costs ? This point was not argued, and I pass it by without expressing any opinion on it, assuming it covers such costs. Does it enable the taxing master to be displaced by a new non- appealable official ? If the taxing officer is still to act, it has only small operation ; it allows the petition or requisition to tax to be got rid of, and enables rules for taxation to be made in the interest of celerity and economy. It cannot, therefore, be said that the applicant's construction makes the provision inoperative. No doubt, the policy of the legislation was to check appeals and lessen expense, but is the section sufficiently clear to put in the place of the Court officer a new functionary not subject to review ? Parliament may have intended to make the change, but (as Lord Watson observed in the Pharmaceutical Case 5, Appendix C., at p. 857) if it has not used adequate language for the purpose, having regard to recognised rules of construction, we cannot give effect to such supposed intention. Without pronouncing any concluded opinion, as I think the order must be quashed on other grounds, I shall assume that the existing tribunal may be displaced under section 31. Assuming the section had that effect, it would seem to point to some person outside the Board ; the Board itself could not tax, and such person is to act under a general rule. I do not think the section authorizes the Board to retain the matter in their own hands, getting advice and assistance from others if they thought fit, and I doubt if it would justify a rule, that instead of a permanent taxing authority, they might employ individuals ad hoc from time to time in their discretion—a course which might well be open to suspicion and abuse. The rules are to be laid before Parliament, and it would be desirable that the person or persons to tax should be described and identified. 2. Assuming that the Board had power to

Counsel for the Board disputed the validity of all the above contentions, and, in addition, argued that certiorari was not an appropriate remedy. I shall discuss these various points. I have derived much help from Mr. Bolton's valuable and complete work. As to the construction of section 31 at the time the Act passed, though what I -may call litigious costs were taxed by a designated officer, whose decision was not the subject of review, conveyancing or title costs of the vendor were, it was not questioned, disposed of by a taxing master as officer of the Court, and his taxation, if erroneous, could be corrected. This appears from section 53 of the Lands Clauses Act, and the Act of 1864. Schedule 2 of the Housing of the Working Classes Act introduced a cheaper procedure pro tanto superseding the previous system, and also dealt with the questions of vendor's title costs (see, for example, paragraphs 10, 22, etc.), but it did not alter the taxing officer. Counsel for the Board argue that section 31 of the Act of 1896, in the interests of economy and expedition, authorizes the Board, after consultation with, or notice to the President of the Incorporated Law Society, to make rules not only as to the taxation of costs, but to erect a new taxing authority, who, unlike the taxing master, would be free from all possibility of correction. Questions as to what may or may not be included in vendor's costs on compulsory acquisition of land are often of extreme legal difficulty, as the Law Reports show, and the applicants could urge that the vendor's right to have costs taxed by a Court officer subject to judicial appeal cannot be taken away without clear and certain language. Counsel for the Board rely on the Act of 1885, section 12, and the order in Council made thereunder; and they further urge that the applicant's construction deprives the section of all substantial operation. The Act of 1885, section 12, sub-section 7, which was probably to some extent the model on which section 31 was framed, enables general rules to be made for regulating procedure under section 12, and generally for carrying it into effect, and for fixing the amount of any fees, and the taxation and payment of any costs in relation to the con firmation of provisional orders. The order in Council thereunder made the Chief Crown Solicitor the taxing authority. This order was clearly intra vires, relating as it does to expropriation procedure, but it does- not