The Gazette 1912-13

The Gazette of the Incorporated Law Society of Ireland.

68

[DECEMBER, 1912.

Recent Decisions Affecting Solicitors. (Notes of decisions, whether in reported or unreported cases, of interest to Solicitors are invited from Members.) CHANCERY DIVISION (ENGLAND). 15, 1912.— Costs—Taxation—• Witnesses expenses—Charge for prepara tion of Brief—Order LXV., 27 (29). WITNESSES served with subpoenas to attend the trial of an action are entitled to be paid conduct money unless • served prematurely, and it is the practice to allow these payments on taxation. A charge for instructions for brief is in the discretion of the Taxing Master, and cannot be reviewed by the Court unless the Taxing Master has proceeded on a wrong principle. Order LXV., 27 (29) (England) is as follows :—On every taxation the Taxing Master shall allow all such costs, charges and expenses as shall appear to him to have been necessary or proper for the attainment of justice or for defending the rights of any party, but save as against the party who incurred the same no costs shall be allowed which appear to the Taxing Master to have been incurred or increased through over-caution, negligence or mistake, or by payment of special fees to Counsel, or special charges or expenses to witnesses or other persons, or by unusual expenses. Order LXV., Rule 05 (^8) (Ireland) is as follows :—No costs shall be allowed between party and party which are not necessarily or properly incurred for the attainment of justice, or protecting the rights of the party, or which were incurred improvidently, or through over-caution, negligence, or mistake, or merely at the desire of the party. This was a summons to review taxation. Two objections were raised to the taxation : First, that the Taxing Master was wrong in allowing conduct money to witnesses ; and, secondly, that in allowing a fee of 225 guineas for the preparation of the brief he had proceeded upon a wrong principle. With regard to the first point, the defendant objected because none of the witnesses attended the hearing of the action, which was settled eight days before the day fixed for (Before Eve, J.) Carter v. Apfel. . November

hearing, the Defendant agreeing to judgment for the amount claimed without any hearing or argument. In these circumstances it was admitted that there was no occasion for any of the witnesses to incur any expense to attend the trial, as there was ample time to inform them that their attendance would not be required. With regard to the other point as to instructions for brief, the Defendant objected on the ground that the amount allowed was out of all proportion to the amount recovered, namely, £1,866, and that the work purported to be covered by such fee was not in fact work done for the purpose of this action, but had been done in a previous action before the present action was com menced. EVE, J.—I have been carefully through this bill of costs, and the conclusion at which 1 have arrived is that it is framed on legitimate and proper lines, and that the items charged are in no way excessive. There are two matters in respect of which objection is taken to the taxation. First, it is said that the Taxing Master was wrong in allowing some £70 paid to various witnesses at the time when they were served with subpcenas.; secondly, that in allowing a fee of 225 guineas for the preparation of the brief he proceeded on a wrong principle. Notice of trial of the action was given in July, 1911, and the case stood * No. 64 in the list of witness actions for the Michaelmas Sittings, 1911, and at the con clusion of these sittings 52 of those actions had been disposed of, so that in the month of November the time was approaching when the case might be heard. The witness list is always an uncertain factor, and no one is bound to believe when a case is nine or ten out of the paper that it will not be reached in a day or two, and in my view the Taxing Master was right in finding that the subpanas, which were served between the months of'October and December, 1911, were not served prematurely. In this connection it is only fair to say that they were not served until more than one attempt had been made to obtain admissions which would have obviated such service. Further, although the full proof of the Plaintiff would have required some 300 witnesses to be called, only some forty were subpoenaed. Then Mr. Tomlin has put this further point, that even if the service of the subpcenas was not prema-