The Gazette 1908-9

[DEC., 1908

The Gazette of the Incorporated Law Society of Ireland.

70

costs of making out title—which prima facie should be borne by the public body which acquires the land. In the case before us, the owner's costs, as drawn by his solicitors, a firm of high standing in the profession, amounted t° £9 !•?• od. They were cut down behind the solicitors' back, and without explanation or excuse, to ^4 i is. \d., while the uncontradicted affidavit on which the application for a cerliorari is based, states that the bill as furnished was drawn in accordance with the schedules of fees and charges authorized by the Supreme Court. If that statement be accurate, and I have no reason to doubt it, the balance of the solicitors' costs will have to be made good to them by their client, the applicant in the present case. It is not unimportant to bear in mind that such balance—if the costs be taxed as between the applicant and his solicitors—will be so taxed with reference to the Supreme Court scale, and will not be subject to the unfettered discretion of the Local Government Board or any person employed by them as assessor or adjuster. Furthermore, this inconsistency would arise if the Act and Rule have effected the revolution in procedure contended for by the Local Government Board, that, if the compensation money were paid into Court and was afterwards paid out to the parties eniitled to it, the costs of showing title would, under a High Court order, be taxed in the ordinary way by one of the taxing masters, and under a County Court order might in certain cases be taxed in accord ance with the rules and schedule of fees relating to Equity proceedings in the County Courts (County Court Rules under the Labourers Act, Nos. 14 and 15). That this must be so, is, I think, clear. It has not been, and in my opinion could not be, contended that costs of proving title awarded under an order of the High Court, or of the County Court, were to be "referred to the Board" under the 55th Rule in cases where the amount of the com- 'pensation was lodged in Court. If, therefore, the ssth Rule is applicable only to bills of costs where the amount of the compensation has not to be brought into C'ourt, it is effective for the purpose put for ward by the Local Government Board of (i) making the Local Government Board the taxing authority, or (2) enabling the Local Government Board to set up any sort of taxing authority that it chooses, and (3) rendering legal a taxation conducted exparte and with out reference to any recognized schedules of fees and charges. While desiring to guard myself against expressing a definite opinion as

to the class of rule which the Local Govern ment Board may legitimately make under the provisions of the 3ist section of the Labourers Act, I am very clearly of opinion that a Rule which purported to sanction a secret taxation, unfettered by any scale of fees and charges, would be ultra vires. It would require very clear language in an Act of Parliament to deprive the land-owner of the statutory right, which he hitherto enjoyed, of having an open taxation conducted by an officer bound to have regard to a certain standard of charges. I can find no such clearness in the words of the section "provide for taxation." Even if the section enables a Rule to be made, nominating a person other than the taxing officer of the Supreme Court to assume the functions of the latter, as to which I entertain very great doubt, it would be strange indeed, in the absence of express language, if it should be held to authorize a departure also from the methods of taxation theretofore in practice. There has not, in my opinion, been any taxation of the applicant's bill of costs, and, consequently, the certificate of the Local Government Board was unwarranted. As to cerliorari being applicable to the pre sent case, I concur with the judgment of the other members of the Court, and have nothing to add. Reported in I.L.T.R., Vol. XLII., page 255. NOTE.—Notice of appeal against the above decision of the King's Bench Division has been served upon behalf of the Local Govern ment Board. COURT OF THIL IRISH LAND COMMISSION. IRISH LAND ACT, 1903. (Before Wylie, J.) IN CHAMBER. Estate of Nicholas Ffolliott Giles and Others. $lh November, 1908. APPLICATION upon behalf of W. J. Byrne (the owner of a superior rent which had been re deemed) by way of appeal from the taxation of applicant's costs of making title to the redemp tion money, which costs had been taxed under the order in this matter of zgth June, 1908, by the taxing officer of the Land Commission, for an order declaring that on the true con struction of the schedule of fees pursuant to the rules of the 4th December, 1903, an "affidavit of title" should be treated as an " abstract of title," and that in consequence