The Gazette 1955-58

Counsel for the solicitors said that, when no writ or other process was issued, there was no scale by which to charge for contentious business, and he pointed out that it might happen that a case was settled before it was decided whether it should be taken in the High Court or the county court. This is no doubt true, but I do not think it should give rise to any difficulty in practice. The taxing masters will act on analogy to R.S.C., Appendix N. They will tax the bill on the same footing as if a writ had been issued. In case of doubt whether it would have been a High Court or county court action, they will, I expect, give the solicitor the benefit of the doubt and allow him to charge on a High Court Scale. Applying the principles which I have stated, I have no doubt that a good deal of the business contained in this bill was contentious business. The solicitors should have delivered a separate bill of costs for all this contentious business, with detailed items and charges. Another bill should have been delivered for the non-contentious busi– ness, and that could have been for a lump sum. The bill which was in fact delivered was a bad bill, because it did not distinguish between the two and treated it all as non-contentious business, which was wrong. I now proceed to consider the second point, which is this : Assuming that the work was all non-contentious, was the bill a good bill ? Until the year 1920 a solicitor's bill, even for non-con– tentious work, had to be drawn in the traditional way, item by item, with a separate charge against each item. By the Order of 1920, as re-enacted by the Order of 1934, a solicitor was authorised to charge a gross sum for non-contentious business, in lieu of detailed charges, but it was provided that the client could insist within six months on a detailed bill of charges, just as if no gross sum were permissible. In 1953 a new order, the Solicitors' Remuneration Order, 1953, was made, which made great alterations in the method of charging for non-contentious business. The solicitor is now entitled, under Sch. 2 ot the Solicitors' Remuner– ation Order, 1883, as substituted by the Order of 1953, to such sum as may be fair and reasonable, having regard to all the circumstances of the case . . . This, I think, means a lump sum as before, but, whereas previously the client could afterwards insist on a detailed bill of charges, he now has no right to have the lump sum split up into items. He is, however, given a valuable new right. He can require the solicitor to put the bill before the Law Society, so that the Law Society can see whether the sum charged is fair and reasonable. If it is fair and reasonable, they will certify accordingly;

taxation in. the proceedings; and, judged by that test, part of the business to which the bill in the present case related was contentious business and » therefore the bill was a bad bill. Per Denning, L.J. : " Non-contentious business is, I believe, more remunerative than contentious business." Although the difference is so important to solici– tors, there is no clear guidance to be found anywhere to enable the profession to distinguish between contentious business and non-contentious business. The Solicitors Act, 1932, evades the issue. The section does not say what " contentious business " means or what " non-contentious business " means. If a clear line is to be drawn there is only one possible place for it, viz., the issue of the writ or other originating process in the courts of law. All busi– ness before that date could be said to be non- contentious, and all business afterwards to be contentious. It would be very convenient if we could draw that line, but I do not think we are at liberty to do so for the simple reason that it is not . the line drawn by Parliament. The statutory dis– tinction depends on the nature of the business contentious or non-contentious not on the time at which it is done. Now suppose that, after the solicitor had instructed Counsel to draft the writ, but before the writ was actually issued, the case was settled by the defendant paying the claim. Does the work take on a different . character simply because the case was settled ? Surely not. If it is contentious business if the case goes for trial it is also contentious business if the case is settled before the writ is issued. The issue of the writ does not alter the nature of the business ; nor should it alter the method or amount of the solicitor's charges. He should get the same reward for the same work, no matter whether the case goes for trial or is settled the moment before writ issued or the moment after it. These illustrations persuade me that, where the work done before writ is such that, if the case went to trial, it would properly be allowed as against the other party on a party and party taxation, then it is contentious business, even though a writ is not in fact issued ; but, if the work would not be allowed on a party and party taxation, it is not contentious business. I am aware that this test sounds vague and indefinite, but the managing clerks in solicitors' offices have a very good idea of what business will or will not be allowed on taxation, and I feel sure that they will be able to apply this test and say without difficulty what is contentious business and what is not. All work done in the cause itself after writ is, or course, contentious.