The Gazette 1952-1955

his solicitor’s costs. If, therefore, it is the intention o f the parties, whether mortgagor or mortgagee, that the receiving party is to have a complete indemnity for his costs, it is necessary to provide for this plainly and unambiguously in the document, and the best way o f doing this is to use the term which has a well established meaning in the Courts, and to provide that “ the costs, charges and expenses shall be taxed or agreed and paid on a solicitor and own client basis.” (See Law Times, 19th June, I 954 )- THE REGISTRY. Q ualified Assistant, 25 years experience, at present with well established provincial firm, desires change : has specialised in conveyancing, probate and general wo rk; also experience in Circuit Court practice ; some High Court litigation; first class references; excellent health; types own drafts. Box No. B187. OBITUARY. M r . C h a r l e s A. C o o k e , Solicitor, died on the 5th July, 1954, at his residence, Corrib House, Galway. Mr. Cooke served his apprenticeship with the late Mr. Thomas M. Kenny, Solicitor, Galway, was admitted in Hilary Sittings, 1915, and practised as senior partner in the firm o f Messrs. Blake & Kenny, Galway. REGISTRATION OF TITLE ACTS, 18 9 1 AND 1942 . N o t ic e . T h e Registered Owner has applied for the issue o f a Certificate of Title in substitution for the Certificate specified in the Schedule hereto which, it is alleged, has been lost or inadvertently destroyed. A Duplicate Certificate will be issued unless a notification is received in this Registry within 28 days from the date o f this Notice that the said Certificate o f Title is still in existence and in the custody o f some person other than the Registered Owner. Any such notification should state the grounds on which the Certificate is retained. Dated this 28th day o f July, 1954. J o s e p h O ’ B y r n e , Registrar o f Titles. Folio 112 19 County Wexford. Registered Owner: Mary Brooke Kelly.

B a s e s o f T a x a t io n a s b e t w e e n P a r t y a n d P a r t y C o st s a n d S o l ic it o r a n d C l i e n t c o s t s i n a M o r t g a g e e s u it . * Members will recall the decision in “ District Bank Ltd. v. Adelphi Hotel Ltd.” referred to in the January 1954 Gazette, at p. 60, in which Mr. Justice Vaisey held that in a mortgage suit, a bank, after judgment, is only entitled to party and party costs in respect o f the whole o f its costs, charges and expenses as mortgagee, unless the mortgage deed specifically states that the mortgagee is entitled to solicitor and own client costs, even though the terms o f the deed were very wide. Mallins V.C. in “ Smith v. Bu ller” L .R ., 19 E. p. 473, gave his view o f “ party and party costs ” though the expression has never been defined. He said that “ The costs chargeable under a taxation as between party and party are all that is necessary to enable the adverse party to conduct the litigation and no more. Any charges merely for conducting litigation more conveniently may be called luxuries, and must be paid by the party incurring them.” In connection with a mortgagee suit, it is submitted that the following costs incurred by the mortgagee do not come within “ party and party costs ” : (1) The preliminary steps being taken, prior to action to enforce the security—such as the interviews between the bank and its solicitors discussing the line of action to be taken, and possibly a conference with or an opinion from counsel in the matter. (2) Letters written to the mortgagors with regard to the payment off o f the mortgage and negotiations for time in which to pay, and further advice to the Bank in relation thereto. (3) After judgment has been obtained, only the bare costs relating to the discharge o f the mortgage would be allowed. This would not include any advice to the Bank as to the terms o f the discharge. As regards the costs, charges and expenses o f the Bank in relation to the negotiations for and prepara­ tion and completion of the mortgage, these will only be allowed on a solicitor and client basis, either on a well-recognised principle or under some contract plainly and unambiguously expressed. While it is customary for the mortgagor to pay the mortga­ gee’s solicitors costs o f the mortgage, this appears to mean no more than the strict party and party costs for the preparation, negotiation and completion of the mortgage. Unless there is an express agreement to give the mortgagee a complete indemnity for

Central office, Land Registry, Chancery Street, Dublin.

(See schedule o f lands next page)

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