The Gazette 1952-1955

again or, rather, what they thought was the same thing. It was, in the words of the very experienced managing clerk who dealt with it, a ‘ stock requisition,’ and he answered in the ‘ stock form.’ He answered it in the way in which, Harman J ., said, ‘ such questions had been answered from the time of the memory o f man, or at all events for a long time. But by ill luck the Courts held that the words which the solicitors used, instead of protecting their clients, amounted to a repudiation o f the contract. That was, in my view, not the solicitors’ fault. It was not a thing which could reasonably have been anticipated to flow from the answer to the requisition. The solicitors acted in accordance with the general practice o f conveyancers. No ill consequences had ever been known to flow from an answer in this form. Now that the case has gone adversely to the plaintiff, we can see that it was a mistake, but it is so easy to be wise after the event. One has to try to put oneself in the position o f the solicitors at the time and see whether they failed to come up to a reasonable standard o f care and skill such as is rightfully required o f an ordinary prudent solicitor. It seems to me, applying that test, that it is impossible to say that these solicitors were guilty of a breach o f duty to their client. It was one of those misad­ ventures and misfortunes which do sometimes happen even in the best conducted businesses.’ I think that Harman J ., was right in holding the solicitors were not guilty of negligence in regard to the answer to the requisition.” {Simmons v. Pennington (1955) 1, A ll E .R ., 240). Costs. Agreement fo r payment of lump sum Solicitors having failed to deliver to their client a proper bill of costs as required by sections 59, 60 (5) and (6) o f the Solicitors Act 1932, corresponding to sections 4 and 10 o f the Attorneys and Solicitors Act, 1870, the client issued a summons asking that the bills, fees, charges, and disbursements o f the solicitors be referred to a Master to be taxed. At the hearing o f the summons the solicitors asserted that under an agreement, the client had paid to them a lump sum in full settlement o f their account and therefore under section 62 of the 1932 Act, corresponding to section 15 o f the Attorneys and Solicitors Act, 1870, their costs were not subject to taxation nor to the provisions of the Solicitors Act, 1932, with respect to the signing and delivery of a bill o f costs. The Master directed an issue on the question whether there was an agreement as alleged and the Judge, in chambers, re-opening the agreement on the ground o f special circumstances under section 60 (6) o f the 1932 Act, corresponding

to section 10 of the Attorneys and Solicitors Act, 1870, ordered the solicitors to deliver a bill of costs for taxation. On appeal by the solicitors, the Court of Appeal (Sommervell, Birkett and Romer, L .J.J.), affirming Glyn, Jones J ., held that the solicitors having disregarded the requirement of section 60 (5) o f the 1932 Act, corresponding to a proviso to section 4 o f the 1870 Act, by receiving payment o f the sum due under the alleged agreement without first submitting the agreement to the Taxing Officer for examination and allowance by him are disabled from claiming immunity from taxation under section 62 o f the 1932 Act and must, therefore, deliver an itemised bill of costs for taxation. (Re Simmons & P o lite r (1954) 3, W.L. R ., 423.) Costs.—Contentious or non-contentious business—Lump sum bill. In March, 1953, a client sought the advice o f a firm of solicitors (“ the first solicitors ” ) with regard to matrimonial difficulties which had caused her to live apart from her husband who resided in South Africa. On their advice, inquiry agents were employed, a petition for judicial separation was prepared and costs were incurred in preparation for the filing of the petition which they had advised her to have ready if she decided to institute pro­ ceedings. At the same time the first solicitors advised the client on offers of financial provision made to her by her husband. The client withdrew her instructions from the first solicitors in July 1953, before the petition had been filed and instructed a second firm. A petition in substantially the same form as that originally drafted was eventually filed by the second firm in December, 1953. In September, 1953, the first solicitors delivered a lump sum bill which contained a detailed description o f the work that they had done. The client applied for and obtained from a master an order for the delivery o f an itemised bill o f costs. On appeal, the Court, at the request o f the parties, considered the appeal first on the footing that the lump sum bill was in respect of non-contentious business only. Held by Gerrard J : (i) Assuming that the whole o f the business to which the lump sum bill related was non-contentious business within art. 2 {c) of the Solicitors Remuneration Order, 1883, the lump sum bill was a good bill and in accordance with Sch. 2 to that order as substituted by the Solicitors Remun­ eration Order, 1953, notwithstanding that the latter order had revoked the Solicitors Remuneration

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