The Gazette 1916-17

[JANUARY, 1917

The Gazette ol tbe Incorporated Law Society of Ireland.

56

Recent Decision affecting Solicitors. (Notes of Decisions, whether in reported or unreported cases, of interest to Solicitors, are invited from Members.) COUNTY COURT. (Before the Recorder of Belfast). SHEAN AND DICKSON v. FOSTER. Belfast, January 19, 1916.— Solicitor—Bill of Costs — Withdrawal—Second Bill of Costs. In proper circumstances a bill of costs served by a Solicitor upon his client may be with drawn, and a bill of costs drawn according to the scale fee substituted for it. Remitted action tried before the Recorder of Belfast (Judge J. Walker Craig, K.C.). The facts were as follows :—The plaintiffs were a firm of solicitors who had acted for the defendant in the attempted purchase of some property. The purchase fell through at the last moment before completion owing to the vendor's refusal to comply with a requisition. The negotiations had previously been protracted, and the work heavier than usual. On August 30, 1913, the plaintiffs drew a bill of costs against the defendant, called herein " the first bill." This bill was for £15 Os. 6d., and consisted of £9 15s. 6d. for outlay and £5 5s. for professional charges, and was sent to defendant on September 15, • 1913. After various applications the plaintiffs wrote to the defendant on July 3, 1914. saying that if payment were not made by July 9, 1914, this offer would be with drawn and the costs furnished on the usual scale charges, and payment of same at that rate insisted on. No notice being taken of this warning, the plaintiffs proceeded to draw a regular bill of costs. In so doing they came to the conclusion that the vendor was liable for £6 12s., part of the outlay charged in the first bill. On August 18, 1914, they wrote defendant telling her of this fact, and offering without prejudice to take payment of the balance due under the first bill in full settle ment if payment were made within a week. No reply was returned, and ultimately the bill of costs drawn to scale to £29 15s. 5d. was furnished on November 3, 1915. The

plaintiffs subsequently issued a writ, which was remitted by consent. The defendant claimed to be entitled to treat the first bill as alone valid and subsisting, admitted liability thereunder, and paid into court £8 19s. H. M. Thompson, for the plaintiffs.—The first bill was not a bill within the Solicitors Act, 1843, s. 37. All the items were not charged in'--a taxable shape, nor did it give sufficient materials for getting advice on taxation : Philby v. Hazle, 8 C. B. N. S. 647 ; Wilkinson v. Smart, 24 W. R. 42 ; Re Tilleard, 32 B. 476. Even assuming that it is such a bill, the solicitors may withdraw or amend it, for there has been no order or request to tax the bill, and they have acted with perfect fairness : Re Chambers, 34 B. 177 ; Lumsden v. Shipcote, [1906] 2 K. B. 433. P. L. McCorry, for the . defendant.—The general rule is that a' solicitor is bound by his first-oil! of costs, -said will not be allowed to amend or with/ uw it ; and there is nothing here to prevJit the application of that rule : Re Thompson, J3Q_ C. D. 441 ; Re Heathe, L. R. 5 Ch. Ap . 694. The Recorder of Belfa v ".Id that in the circumstances of the cas he plaintiffs were entitled to withdraw the arst and furnish the second bill, and gave a decree for the amount, subject to taxation, bo'ul''r»ills to be brought before the Taxing Master, and credit being given for the money paid into court. The following order was accordingly made :— Decree for plaintiffs imount to be ascertained by taxation of the bill of costs, dated November 3, 1915, and the-ibill or note of costs of August 30, 1913, both to be sub mitted to the Taxing Master ; but the fact of a decree having been granted implies, and is to be taken to imply, that the plaintiffs were not bound by the said bill or note of August 30. (Reported I.L.T.R., Vol. L., 235). ALL communications connected with THE GAZETTE (other than advertisements) should be addressed to the Secretary of the Society, Solicitors' Buildings, Four Courts, Dublin.