The Gazette 1910-11

The Gazette of the Incorporated Law Society of Ireland.

APRIL, IT)11]

211

of Solicitors, which brings the position of Solicitor on the record automatically to an end, necessarily takes away any right of proceeding in this Division with regard to the payment of his bill. It was not unreasonable for Mr. Whitehead to send his bill .to the Solicitor who succeeded him and, sub sequently, to the lady herself. Rules 154 and 155 deal with taxation. The Court may say there shall be a stay of proceedings until the costs are paid and discharged. In the case of Nairne v. Nairne (85 L. T. 649) the Solicitors themselves put an end to the relation of Solicitor and client. In this case it ceased by the act of the petitioner. The question is different here. The question is : Can a client, by merely giving notice of a change of Solicitors, take away the ordinary position of Solicitors as to security for their costs ? In my judgment it is not fair that it should be so. This Solicitor should be able to secure some protection against the husband for the costs which he has incurred for the wife without having recourse to common law proceedings. Therefore, the proceedings in this application must be stayed in order that the suit may be kept alive, and in order to give the Solicitor an opportunity to carry in his bill. The costs of this application and in Chambers may be added to the bill, without prejudice to any subsequent order as to costs, in order to avoid a second taxation. Leave to appeal was granted. (Reported Times Law Reports, Vol. xxvii., 326 ; Solicitors' Journal, Vol. lv., 366). KING'S BENCH DIVISION (ENGLAND). (Before Joyce J.) Re Shuttleworth ; Lilley v. Moore. March 16, 1911.— Costs—Taxation •— Will— Solicitor—Executor — Insolvent estate— Administration action—Profit costs. A SOLICITOR who is sole executor and trustee of a will is not entitled, if the estate is found to be insolvent, to his costs of defending an administration action in person, nor to any other costs, except his out-of-pocket expenses, even though the Will contained a clause empowering him to make professional

charges, and the action on further consideration directed the costs of the defendant to be taxed as between Solicitor and client, and retained by him out of the balance due from him. This was a summons by the defendant in an administration action for a review of taxation. The testator, by hisWill, appointed the defendant (who was a Solicitor) and another, executors and trustees thereof, and declared that the defendant should be entitled to charge for professional work done by him in the course of administration. The second executor predeceased the testator. The testator died in 1908, and an administra tion action was commenced by a creditor of the estate. The Defendant appeared in person. The Master's certificate found that the estate was insolvent, and an order on further consideration was made in Chambers by which it was ordered (inter alia) that it be referred to the Taxing Master to tax as between Solicitor and client the costs of the plaintiff and defendant of the action, including in the costs of the defendant any charges properly incurred by him as executor of the testator's Will and not already taxed or allowed beyond his costs of the action ; and that the defendant should retain the amount of his costs when so taxed out of the balance certified to be due from him. The defendant | brought in a bill of costs which was taxed by j the Taxing Master at £15 8s. The defendant thereupon brought in objections to the taxation, on the ground that the Taxing Master had not followed the order on further consideration, and that he ought to allow the Defendant ordinary costs in the action as between Solicitor and client. The Taxing Master overruled the objections on the ground that the case was concluded by authority ; and in his answer to them, he said that the sum which he allowed to the defendant was " sufficient to amply cover his disburse ments." The defendant then took out the present summons for review, and appeared in person at the hearing. The Judge, in giving judgment, said :— In this case my sympathies, if I am entitled to have any, are with the applicant. He was appointed executor by the testator, with full power to charge for his costs. Proceedings were taken by a creditor to administer the estate, and in those proceedings the applicant, the order in