The Gazette 1912-13

JANUARY, 1913.J

The Gazette of the Incorporated Law Society of Ireland.

instructed them to put forward." The reply to this on the next day by Sayers & Wilkins did not look as if the latter understood the letter in the sense now suggested, for they wrote : " We thank you for your letter, and observe that Mrs. Nealor has instructed you in this matter." Up to that point, as the correspondence conclusively shows, Mrs. Nealor had acted and been treated as their sole client by Sayers & Wilkins, and Capt. Nealor had not only not at any time instructed them, but had refused even to give evidence at the arbitration, and it was not till July 3 that Sayers & Wilkins made a demand upon both husband and wife for their costs. No doubt a retainer need not be given in writing. It may be given even by implication ; but it is for the plaintiff to establish it; and under the above-named circumstances I cannot find that there is any evidence to justify my holding that Captain Nealor ever retained Messrs. Sayers & Wilkins. There remains the most difficult part of the case. The two bills of costs for £28 19s. 3d. now sued on were not delivered till July 3, but early in June a correspondence took place between Mrs. Nealor and Sayers & Wilkins, the legal effect of which, it is contended, is that they delivered a bill for £10 in full settlement of the same costs, by reason of which they are precluded in law from delivering any further bills for a larger amount. His Honour read five letters, and pro ceeded :—The argument urged on behalf of the defendants is that the statement in Sayers & Wilkin's letter of June 4, " The balance (£10) are our costs in the matter. We have no doubt you will appreciate our view of the matter when you contrast our costs with those of the other side," amounted to a delivery of a bill of costs for £10, and that the bills now sued on are in consequence a mere nullity. I cannot find anything to support this argument either in the Solicitors Remuneration Acts or in any decided cases. There is no statutory definition of the term " bill of costs," and in the absence of that, or any judicial interpretation, I must give the words their natural meaning. Giving them their natural meaning, they must mean a bill so stated that the client can obtain advice as to its taxation, and it must, therefore, have

His Honour, reserved judgment, said :—There are two bills of costs sued on—one for £21 3s. 5d., comprising the costs from January 28 down to May 8, when the arbitration was completed ; and a second for £1 15s. 10d., relating to the costs from May 18 to June 17, of defending the action brought by the Insurance Co. against Mrs. Nealor to recover the costs of the arbitration. It is necessary to distinguish these two bills in view of the defences raised. There was a general defence of negligence to the whole of both bills on the ground that the advice given by the plaintiff and his former partner to Mrs. Nealor to submit her case to arbitration and to allow the costs to be taxed by the arbitrator was such a gross error of judgment as to preclude the plaintiff from recovering anything from Mrs. Nealor for his services in connection therewith. But, after hearing the evidence not only of the plaintiff but of Mr. Grant McLean, who conducted the arbitra tion tor the Norwich Union, I have no doubt that the matter was a proper one to be sub mitted to arbitration, and that Mrs. Nealor's case was competently handled by the plain tiff, and that the arbitration and taxation were carried out as they were, owing to the strong desire of Mrs. Nealor to avoid publicity. It was further contended (1) that Capt. Nealor was not liable at all, because there was no evidence of any retainer of the-plaintiff by him ; and (2) that Mrs. Nealor was not liable for the costs relating to the action brought by the Insurance Co. because she had given no retainer to the plaintiff in regard to these proceedings. There is, however, to my mind, clear evidence that Mrs. Nealor instructed the plaintiff and swore an affidavit in these proceedings, and I have no doubt that she retained him to defend them for her. In regard to Capt. Nealor, it was admitted by plaintiff's Counsel that the sole evidence of retainer by him was to be found in a letter addressed on June 26 by Messrs. Chamberlain & Co., his then Solicitor, to Sayers & Wilkins, in which Messrs. Chamberlain said that " they had been consulted by Captain and Mrs. Nealor in reference to their position with the Norwich Union," and in which they added that " they were somewhat surprised to hear that Messrs. Sayers & Wilkins had not put forward the proposition Capt. Nealor in delivering a