The Gazette 1955-58

by way of Notice of Motion to the High Court against this disallowance. HELD—That the appeal to the High Court from the Taxing Master was properly brought by way of Motion on Notice and that it was not necessary to proceed by way of Originating Summons. HELD further—That the transaction in question came under Schedule i, Part I, Rule 2 (a) of the Solicitors' Remuneration General Order, 1884, under the Solicitors' Remuneration Act, 1881, and that the applicant was entitled to three-fourths of the scale fee payable to vendor's solicitor under the said Schedule. Dixon J., delivering judgment, said that he held that the appeal from taxation by the Taxing Master to the High Court, which was provided for by Order Ixv, Rule 66, of the 1905 Rules of the High Court and Supreme Court, could be properly brought by way of Motion on Notice and need not be brought by was of Originating Summons. The present appeal dealt with a very net point. The only question was whether the particular bill came within the provisions of Schedule i, Part i, Rule 2 (a) of the General Order of 1884, made in pursuance of The Solicitors' Remuneration Act, 1881. The Taxing Master seemed from his report to have taken the view that it did not, and could not, by reason of the fact that the solicitor had been em ployed in connection with attempts to sell otherwise than by auction, both before and after the unsuccess ful auction which was the subject-matter of this bill, and had charged on an itemised basis in respect of this work. That view involved reading a quali fication or limitation into paragraph (a) of the Rule, which was not there in express terms, that is to say, that paragraph (a) only applied to an abortive auction where no other work by way of attempted sale was carried out by the solicitor. His Lordship said that he did not see how or why such a quali fication should be implied. If a solicitor employed in connection with an abortive auction was also asked to carry out other work for the client, he might be in a very disadvantageous position regarding remuneration if that qualification existed. In addition, practical difficulties might arise if there were a considerable lapse of time between the auction and the other work done by the solicitor before or after the auction. His Lordship said he agreed with the view expressed in Gill on Costs, 1932 Edn., p. 198, that an abortive auction was to be regarded as a " complete transaction" within the meaning of the General Order of 1884, for the purposes of taxation. It was immaterial and irrelevant whether 10

fact, that some outside interest had financed the appeal; there was no suggestion that it was a maintained action. While, however, he was not in a position to say that there had been the agreement alleged, he submitted that there was substantial evidence that someone other than the respondent did in fact pay at least counsel's fees, and though there had been a specific denial of any agreement, that appeared in only one sentence in an affidavit, and he wished to be given an opportunity of examining material witnesses. The matter, con cluded counsel, was of some importance because the items in question ran into some thousands of pounds, and he asked the Board to exercise its very wide powers under s. 8 of the Judicial Com mittee Act 1833 and to refer the matter back for investigation to the registrar of the court from which the appeal came. If the petitioner was unable to establish any agreement, added counsel, and he acknowledged that the burden on the petitioner was very heavy, the respondent had the safeguard of costs. In the result the Judicial Committee, without calling on counsel for the respondent, said that the motion must be refused, and, in accordance with their almost invariable practice in the case of petitions, they gave no reasons for their decision. (Reprinted by courtesy of The Solicitor's journal, and March, 1957, page 198). Solicitor entitled to three-fourths of scale fee in case of abortive auction if he has substantially performed the work. The applicant acted as solicitor for the respondent in connection with an auction of the respondent's garage premises, and also in connection with negotiations conducted before and after the auction for the sale of the premises by private treaty. The reserve price was not reached at the auction and the property was withdrawn. After further efforts to sell, the respondent changed his solicitor and the new solicitor acted for the respondent when a sale of the property was eventually effected by private treaty. The applicant delivered three bills of costs to the respondent, the first and third of which dealt with, among other things, the costs of attempts to sell the property before and after the abortive auction. The second bill charged three-fourths of the scale fee on the reserve price at the auction, in respect of the costs of the abortive auction. This fee was disallowed in toto by the Taxing Master on taxation. The applicant appealed